Civ Pro Ii

Front 1

Which Rule allows you to move for a

Protective Order?

Back 1

26 (c)

Front 2

What is the important Constitutional principle behind the Erie decision?

Back 2

Federalism

Front 3

What must you do first in order to move for a default judgment?

Back 3

Have the clerk enter the default

Front 4

What do we mean by the phrase “pierces the pleadings” and at what point does that happen?

Back 4

You can no longer rely on allegations; you need evidence. That happens for Summary Judgment.

Front 5

What Rule governs jury verdicts and identifies the types one can ask for?

Back 5

Rule 49

Front 6

State the test for a compulsory counterclaim.

Back 6

Same transaction or occurrence

Front 7

Which defenses are waived if you do not assert them via a Pre-Answer Motion or in a responsive pleading?

Back 7

12(b)(2-5)or
Personal Jurisdiction,
venue,
Service,
or process

Front 8

Which Rule sets out the requirement to provide, without a request, the name and contact information of each person likely to have discoverable information that a party may use to support its claims or defenses?

Back 8

26(a)(1)

Front 9

From the Rule you identified in #8 above, state the exception which allows a party to not
produce that information without a request.

Back 9

If information is for impeachment purposes only

Front 10

How many interrogatories can a single party serve on another party?

Back 10

25

Front 11

What does Rule 68 govern?

Back 11

Offers of Judgment. Allows ∆ to make offer for ∏ to accept.

Front 12

What state’s law does a federal court use to
determine what law will apply in a diversity
action in federal court? What case does this rule come from?

Back 12

The law of the state the federal court sits in. Klaxxon

Front 13

What is the Rules of Decision Act?

Back 13

Laws of state apply where state law and federal law are in dispute.

Front 14

Explain the difference in the court’s consideration of evidence on a motion under Rule 59 versus a motion under Rule 50.

Back 14

59- Ct weighs the evidence.

50-Judgment as a matter of law

Front 15

In a Title VII action, a plaintiff alleges great emotional distress arising from the discrimination and is seeking compensatory damages based on that distress. If the Defendant disputes that Plaintiff is actually emotionally distressed, what is Defendant entitled to do in discovery?

Back 15

Rule 35.Mental examination.

Front 16

Which Rule allows a party to ask for a deposition of or document production by an Organization?

Back 16

30(b)(6)

Front 17

How do you demonstrate a genuine dispute of material fact?

Back 17

Evidence that contradicts other evidence going to a necessary claim or defense.

Front 18

Which Rule governs whether sanctions are appropriate in a discovery dispute?

Back 18

37

Front 19

In an action under the Federal Tort Claims Act, the plaintiff sues the United States Navy and a Naval Officer in his official capacity for personal injuries. Defendants Answer, denying liability on the facts, and immediately move for summary judgment, supported by affidavits. What is the judge likely to do and which Rule governs?

Back 19

D will dispute facts. Judge will deny motion Rule 56(d)

Front 20

During discovery, a party does not want to produce responsive documents on the basis of a claim of privilege. What is such party nevertheless obliged to produce?

Back 20

26(b)(5) a log of what you are withholding and why they are privileged.

Front 21

If the opposing party believes that privilege does not apply to documents withheld from discovery, what should it do first?

Back 21

Speak to opposing party first. Good faith

discussion.

Front 22

What is the difference between a judgment and verdict?

Back 22

Judgment- Judge order, ends the case Verdict-Jury decision on facts.

Front 23

According to the majority in Ashcroft v Iqbal, how should a district court consider a Complaint on a Rule 12(b)(6) Motion

Back 23

Ignore legal conclusions,

assume truth of the facts,

properly plead,

test plausibility

Front 24

What documents does the court consider on a motion under FRCP 12(c)?

Back 24

All the pleadings

Front 25

If parties agree during discovery to settle an action out of court, what Rule should the plaintiff follow next and why?

Back 25

Voluntary dismissal. Plaintiff may think they

cannot win.

Front 26

How do you know whether a matter is

protectable under R 26(b)(3)?

Back 26

Prepared in anticipation of litigation.

Front 27

What are the 3 circumstances under which a party may appeal a decision of the trial court?

Back 27

Final decision, collateral order doctrine, as permitted by 28 USC 1292.

Front 28

What Rule governs requests for admission?

Back 28

Rule 36

Front 29

What mechanism under the Federal Rules governs whether a party to a lawsuit can secure

the production of documents from a non-party who does not want to provide those documents voluntarily?

Back 29

Rule 45. Subpoena

Front 30

List the 4 Rules which allow a Defendant to move to take a case away from a jury’s

decision.

Back 30

12, 56, 50,59

Front 31

When does formal discovery begin & what rule so states?

Back 31

Discovery begins after an answer is filed.

Rule 26(d)

Front 32

What does the 7th Amendment require?

Back 32

A right to a jury trial

Front 33

How isa court to determine whether a Complaint plausibly states a claim for relief?

Back 33

There mustbe enough concrete facts to back up the claim. The elements of the claim cannotbe merely possible. Facts cannot be circumstantial. Twombly case.

Front 34

1) Abe,Bonnie, and Chuck are all co-beneficiaries of their grandfather’s trust. Abe sues the trustee, Tom, for breach of fiduciary duty and misappropriation of trust funds. Abe seeks an accounting of the funds and an equitable charge for his benefit over any monies or property held in Tom’s name that was acquired through misappropriation of trust funds. Judgment issues in Tom’s favor. Abe does not appeal. Bonnie and Chuck then file a suit against Tom on the same claims. Does Tom have a valid procedural defense to the second action? Explain.

Back 34

Claim Preclusion. The parties are the same.

Bonnie and Chuck are privies to the first suit and could have joined. The judgment was final and binding because Abe did not appeal. If the court finds in a second suit against the ∆, the outcome would be legally inconsistent with the first suit, thus making it impossible for Bonnie and Chuck to file the same suit against the same ∆.

Front 35

Assume the facts in #4 above, but that judgment issued in favor of Abe. Tom appeals. While the appeal is pending, Bonnie and Chuck file a second suit against Tom, arguing that Tom is precluded from denying breach of fiduciary duty. What result?

Back 35

Since the judgment is for the plaintiff, all the

elements of the claim were present necessary for judgment. The issue was actually litigated. They are not the same parties. The court may

allow the suit to proceed without issue

preclusion being a defense.

Front 36

If Defendant moves for summary judgment based on an affirmative defense, must it support its motion with evidence? Explain

Back 36

Yes. If Defendant is using affirmative defense, then they must prove why their action should be allowed although all the elements of the pleading are present.

Front 37

If a party refuses to respond to an interrogatory claiming that it is overbroad and burdensome, what rule governs what the proponent can do?

Back 37

Rule 37. Sanctions.

Front 38

If the evidence at trial turns out to support different facts that those alleged in a pleading, what should a party do and what rule applies?

Back 38

Rule15(b)(1). Amendment During and After Trial.

Front 39

How do you know whether you are entitled to demand a trial by jury in a civil action?

Back 39

Right to jury applies ONLY TO SUITS AT

COMMON LAW (money remedies)The right is

PRESERVED (keeping it the same as it was when 7th amendment was written). Right to jury is as it existed in 1791.You can only have a jury if you would have had one in 1791. BUT party must

DEMAND jury or right is waived, R38(b)&(d)

Front 40

State a “transaction test” and name at least one procedure to which it applies.

Back 40

Transactional test (Are claims based on the same transaction or “common nucleus of operative fact”?) Claims preclusion.

Front 41

Which rule permits you to move for judgement on the pleadings?

Back 41

Rule 12(c)

Front 42

What is the qualified privilege protecting material from discovery under FRCP 26 (b) (3)?

Back 42

Protecting materials that are prepared in

anticipation of litigation or for trial by or for

another party or its representative.

Front 43

How should the court consider credibility of

evidence on a motion under Rule 50?

Back 43

Court may consider actual evidentiary tender and rulings, since evidence has been presented in trial. In other words, credibility determinations are not proper and evidence is viewed in favor of non-movant.

Front 44

Under what circumstances will a court permit a plaintiff to assert issue preclusion against a

defendant if that plaintiff was not a party to the prior action which she seeks to use for

preclusion?

Back 44

(Parklane-relaxed on parties element) Court allows offensive issue preclusion when the plaintiff was not privileged to specific damages that the original plaintiff was. (liability)

Front 45

Under the Celotex case, what must be included in a motion for summary judgement if the movant does not have the burden of proof?

Back 45

The non-movant must show that there is an

absence of evidence to support the legal issue in which the movant needs to establish to win on summary judgement.

Front 46

Which discovery rule is equivalent to a

certification that a person who signed a document requesting or responding to discovery has made a reasonable investigation of the law and the facts, similar to the standard applying under FRCP 11?

Back 46

Rule 26(g)

Front 47

If new responsive information comes into a

party or attorney’s possession after

interrogatories have already been responded to,what is the proper procedure and what rule governs?

Back 47

Rule 26(e) governs discovery being an ongoing obligation. Therefore, if information comes after interrogatories, it must be turned over to the

opposing party.

Front 48

May a district court deny a defendant’s motion for summary judgement on the basis that it is best to let a jury decide whether there is a

genuine dispute of fact?

Back 48

No. The court should decide if there is a genuine dispute of material facts. Then the jury should hear the facts to determine who is telling the truth.

Front 49

When is a party entitled to seek costs in litigation and what rule governs?

Back 49

Must be filed w/n 14 days of entry of judgment.Rule54.

Front 50

If a non-party receives a document purporting to compel her attendance for discovery under Rule 45, what should that person do if she does not want to attend? Explain.

Back 50

If the non-party does not want to attend, the non-party must serve an objection to the

requesting party no later than 14 days after the subpoena is served.

Front 51

Why is a judge more likely to grant a motion

under FRCP 50 (b) than under FRCP 50 (a)?

Back 51

A motion under 50 (b) is more efficient than

under 50 (a).

Front 52

1. Supplier and Manufacturer enter a contract providing for delivery of 15,000 widgets, to be delivered in equal batches on 3different dates. Supplier delivers timely on the first date, but makes no deliveries on the second date and is so late on the third date that it cost Manufacturer $100,000. Manufacturer sues Supplier for breach of contract,seeking damages for the late 3d delivery. No matter who wins, may

Manufacturer later sue Supplier in a second action for the costs associated with the missing second delivery? Explain.

Back 52

It would be inefficient and unfair for the Manufacturer sue and recover for the second delivery date, because it should have been brought up in the original suit.

Front 53

Would it make a difference to you answer in #7above if there had been 3 separate contracts. Explain?

Back 53

If the court determines there was 3 separate contracts (1 for each delivery), only then will Manufacturer possibly be successful in another suit for the second delivery.

Front 54

What is the standard of review of

“abuse of discretion”?

Back 54

“Latitude”-most deferential, lower court’s decision stands if there was a “judicial” basis for the decision.

Front 55

When will an appellate court apply a “clear error” standard of review to a trial court decision?

Back 55

“Obvious”-when an obvious error was made by the lower court.

Front 56

What is the maximum number of documents able to be requested in federal discovery and what rule(s) govern?

Back 56

Rule 34. No limit. Must be reasonable.

Front 57

If a party asks to depose a witness testifying in support of the opposing party, which party

decides whether the deposition will be videotaped and what rule governs?

Back 57

Rule 30 governs. The party deposing the

deponent must state the means of the deposition along with other details in a notice. Any party may designate another method of recording.

Front 58

A manager of a company is being deposed by the lawyer for a Title VII plaintiff. What should the company’s lawyer do if it thinks the questions by plaintiff’s lawyer were not proper?

Back 58

Object 34(c)(2)

30(d)(3) a party may terminate or limit deposition on the ground that it is being conducted in bad faith or in a manner that unreasonably

annoys, embarrasses, or oppresses the

deponent or party.

Front 59

Which Rule specifies that a Court may sua sponte suggest summary judgment is appropriate? What are the requirements under this Rule?

Back 59

Rule56(f)(3) allows the court to enter summary judgment sua sponte without a formal motion after proper notice to all parties.

Front 60

State the legal standard for relevance in discovery under Rule 26(b).

Back 60

Information is relevant if it in any way bears on issues relating to a claim or defense.

Front 61

An action is tried to a verdict for Plaintiff for $150,000.00. The judge dismisses the jury with thanks and orally indicates a written judgment will issue on the verdict. The judgment is

entered the following day for Defendant for$150,000.00. What should Plaintiff do and which Rule governs?

Back 61

Rule 50(b) motion for a new trial.

Because judge did a judgment notwithstanding the verdict.

Front 62

After a verdict is rendered against a Defendant, state what motion(s) a Defendant may file and what would be the standard of review of such motion(s) on appeal?

Back 62

Rule 59.Motion for new trial

Rule 60(b). Motion for relief from a final

judgment due to clerical mistakes/oversights

Front 63

What is a Rule 12(b)(6) Motion and when may it be brought?

Back 63

Motion to dismiss for failure to state a claim.

Can be brought in pleading.

Front 64

Plaintiff files a Complaint for breach of contract. Defendant files a Motion under Rule 12(b)(6) on the basis of res judicata and attaches a copy of the contract and a state court judgment in its favor on that contract. What should the court do according to what Rule?

Back 64

Rule8(c): a party must affirmatively state any avoidance or affirmative defense,including

Res Judicata.

Dismiss the case because it was already litigated and decided.

Front 65

Name the 4 fundamental principles of US federal civil procedure.

Back 65

the needs of the adversary system

the requirements of due process

the need for judicial efficiency

and the requirements of the US Constitution.

Front 66

A Plaintiff in a breach of contract action sends Defendant corporation a written request for waiver of service via Federal Express. Federal Ex confirmed delivery. The waiver is not returned within the time limit for response.

Plaintiff seeks an entry of default from the clerk of court. What result? Explain.

Back 66

Rule 55 The ∏ can seek an entry of default from the clerk of the court; then the ∏ can move for default jmnt.

Front 67

What are the requirements for claim preclusion in federal court?

Back 67

The SAME CLAIMS

SAME PARTIES / PRIVIES

Based on prior FINAL &BINDING J/

Front 68

State the elements of the collateral order

doctrine.

Back 68

(1) Order appealed “conclusively determines disputed question” (could avoid the trial) (Think of purpose of the question)

(2) Order resolves important issue completely separate from merits (ie, imp procedural issue) (3) Appeal after judgment is insufficient to preserve party’s position (eg, immunity) ( example, Appeal denial of immunity immediately)

Front 69

When is a judgment final under 28 USC 1291

Back 69

After Trial

Front 70

Why is a state law affecting the operation of the state statute of limitations going to be considered substantive under the analysis in Erie and Byrd?

Back 70

Became a question of whether a state law was SUBSTANTIVE (affecting your remedy) as a rule of decision under the RDA or PROCEDURAL

(affecting the process in which you collect), so that federal law applied.