Civ Pro 2

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  1. What is the basic two step joinder analysis?
    Are the joinder requirements met?

    • Are the applicable jurisdictional requirements satisfied? (PJ, SMJ, Venue)
    • Must be yes to both for joinder.
  2. What is rule 18 permissive joinder?
    You can bring all claims you have a gainst a party in the same case, even if they are unrelated.  Subject to other procedural rules, PJ and SMJ.
  3. What is a rule 13 compulsory counterclaim?
    Any claim that arises from the same transaction or occurrence that gave rise to your opponent's ciam must be asserted or it is waived.  Exceptions: Immature claims, lack of jurisdiction, pending lawsuit.
  4. What is the rule for permissive counterclaims?
    Claims that do not arise out of the same transaction or occurrence that gave rise to opponents claim may be brought, but don't have to be.
  5. What are crossclaims?
    Claims brought against a person on the same side of the litigation.  Must arise out of the same transaction or occurrence as origional action, always permissivel, must satisfy smj and pj.
  6. What are the permissive joinder requirements?
    Claims brought by or against same person joined under this rule must arise out of the same transaction or occurrence, parties under this rule must have at least one question of law or fact in common.
  7. What is impleader?
    When a party defending a claim joins other persons who are not yet parties toth eclaim.  liabiltiy must be derivative (eg, if I lose, he'll owe me for it)
  8. Explain compulsory joinder in detail
    • Force joinder if steps are met.
    • Step 1: is absentee a required party ( coulrd would not be able to grant relief to existing parties without him, might impair his ability to protect own interest, or leave existing parties subject tto multiple liablties. 
    • Step 2: is Joinder feasible (is there SMJ and PJ?) 
    • Step 3 (if no to 2): is absentee indespensible party?  (prejudice existing parties, can court lessen prejudice, will judgement without be adequate, will P have adequate remedy if court dismisses?)
  9. What is intervention? Explain the two kinds
    Joining a case, two kinds are right and permissive.

    • Right: federal statute confers undonditiaonl right, or person can show significaint interest in subject of litigation, substantial risk that will impair interest, existing parites not adequately protectin interest. Court must allow
    • permissive:  Conditional right by statute, application claim has question of law or fact in common.   Courts discrestion.
  10. Explain interpleader
    Stakeholder who might be subject to multiple liablties can bring everyne together in a single action to prevent multiple judgements that exceed value.
  11. Explain teh two kinds of interpleader
    Rule 22 interpleader: Normal qrueiements for SJ, PJ, and venue.

    Statutory:  PJ is nationwide, citizensihjp of one claimant may be diverse from any other, AIC = 500, venue is any district where one claiminant resides.
  12. What are the common law requirements of class actions?
    Class must be capable of definition, representative must be member of that class.
  13. What are the 23 a requiements of class actions?
    • Numerousity- sufficiently large to render joinder impractical
    • Commmonaility- must be questions of law or fact common to the class member the resolution of which will advance the litigation
    • Typicality: Claims of class representative smust be typical of claims of hte class.
    • adequacy of representation:  class reperensteatives must have interests in common with class and must vigiriously prosecute those interest through qualifeid counsel.
  14. What are the 23 b catergories for class actions?
    • 1a: risk of inconsistent duties for class opponent
    • 1b. risk of practical impairment for non-parties interests
    • 2: class seeking primarily equitable relief
    • 3: predominance of common legal fact or questions (common must predominate over individual interets, class actions are superior means (four factors are invididual interets in seperate actions, pending litigation, desirerabilty of keeping litigation in one forum, diffficulties in managing the class action)
  15. What is the class action fairness SMJ rule?
    Federal courts have SMJ over class actions involving state law claims where there are 100 or more class members, AIC is more than 5 million, and minimal diversity.
  16. What is claim preclusion?
    • when there has been a final judgement on the merits, the same parties (and those in privity with them) cannot litigate the same or a sufficiently similar claim in a later lawsuit.  3 elements.
    • 1. same claim (including those that should hve been brought)
    • 2.same parties
    • 3.valid final judgement on merits.
  17. What are teh three tests for same claims?
    • Transaction test: Precludes claim arising out of the same transaction
    • Same evidence: precludes claim supported b the same evidnece as claim asserted in first action
    • Primary rights test: cannot bring a claim about breach of the same primary right.
  18. What law controls with claim preclusion?
    • state court first? state law governing first suit controls.
    • federal court on FQJ?  federal common law
    • federal court on DJ?  state law of first suit.  absent countervailing federal interests
  19. What are the 3 kinds of privity relationships in claim preclusion?
    • relations hips between owners of successive interests in real or personal property
    • relationships that intertwine the substnatial legal inerests of a party anda nonparty
    • relationship betwwn the party and nonparty which are representational in nature.
  20. When is a judgement final for claim preclusion? when is it not on the merits?
    when it is not tentaite, provisional , or contingent, and represnteds the cmpletion foa ll the steps in the adjudication of the claim by the court. dismissals for jurisdiciton, venue, and failure to join voluntary, or premature are not on the merits,  putting teeth into sanctions may make in on the merits.
  21. When can you use issue preclusion?
    when issue was actually litigated, determined and necessary to the judgement of the prior adjudicationa, nd invoking the doctrine would not be unfair under thecircumstnaces.
  22. What is the necessary to judgement rule?
    the test is whether, had the issue been decided differently, the case would have come out differnetly.  if yes, necessary to judgement, if not, no.  majority also says that if judge could have decided on two alternative grounds, only prelcusive if upheld on appeal.
  23. Explain mutuality in the context of preclusion
    • defensive: new party in second suit uses prior judgement in firs tsuit to efend agianst claim asserted by party to first suit, 
    • offensive: new partiy in second unit used prior judemnet in firs tuit offensive agasint party to first suit to support new parties claim.Broad discrestion.
  24. What is a 16b scheduling order?
    dates and deadlines for litigation, including eadlines for appealing pleadings, adding parties, completion of discovery and filing motions.  soon as practicable,  no latter than 90 days after D's appearance, within 120 days after service.
  25. What is the scope of discovery under 26b
    parties may obtain any non-privileged matter that is relevenat to the claims or defenses of any party.  Relveant means having any tendency to make the exisxtene of any fact consequnet to determiition of the action more or less probable.
  26. what are the required disclosures?
    initial disclosures (witness documents damages and insurance) , expert testimony (testifying only) witnesses, deposition  testiomny and exhibhits likely to be offered nto evidnece at trial.
  27. What are the six formal disvovery methods?
    required disclosures, deposiiosn, written interoggatopries, reqruiemtns for prodution fo graede, metal and physiclas esxxams, m requirests for admissions.
  28. What are the required disclosures?
    • initial disclosures (witnesses, documents, damages, insurance)
    • Dieslcousre of expert testimony (only testifying experts)
    • Pretrial disclosures: witnsses, depositiosn, and exhibits liklety to be offered into evidence at trial
  29. what's a 26f conference?
    meeting 21 days before scheduling order (at lea and defenses, possibility of settlement, initial disclosures, issues regarding preservation, develop formal discovery plan.
  30. What are the initial automatica disclosures?
    witnesses and documents the party may use to support its claims or defenses, unless soley to impeach, damage computations, any insurance that covers the judgement.
  31. ?How many oral depositions? how long?
    Up to 10, 7 hours each, only one per person.
  32. What is the rule for interrogatories?
    liit of 25, must get response in 30 days, applies only to parties, service of written qeustions by one party on another.
  33. What is the rule for production of ducmnents and things? (34)
    No limit on number of requiets, document is broadly defined, producing party must produce within 30 days.
  34. What are the rules for testifying experts? Nontestifying?
    testifying experts report is an automatic disclousre, nontestifying are proteced from disvoery unless expert is treating or exaimining health professional, or party cannot obtain facts or opinions on the same subjet matter from any other means.
  35. what is a motion for summary judgement?
    a motion that is granted to decide the case in one side's faor if the moving party can show there is no genuine dispute as to any material fact, and as a result, moving party is entitle dot judgement as a matter of law.  No reasonable jury could decide for other side.  Burden of proof is always on moving party.  must make prima facie case showing that SJ is appropriate, then the other side must produce evidence establishing a genuine dispute of material fact exists.
  36. When do you have a right for a jury trial?
    in actiosn that are historically legal, not equitable.
  37. what happens in mixed legal equitable cases for jury?
    jury decides the legal issue, then, if needed, judge decides the equitable issue.
  38. What is the directed verdict standard? JNOV standard?
    same standaqrds as summary judgement, no reaosnable jury.
  39. what is the general rule for appeals?
    you can only appeal a final decision, a judicial order that conslucively resovles some important apsect of the case and results in termation of the litigation
  40. What is the collateral order doctrine?
    a decision is appealable if it is conclusve on the issue presented, resolves important questions seperate from the merits, is effectively unreviewable because rights cannot be vindicated.
  41. What are the 4 standsards of review
    • Question of law: de novo- no deference
    • Discrestionary decision: Abuse of discrestion, clear error of judgement or law required to overturn
    • Findings of fact by judge: clearly erroneous standard- reviewing court must have firm conviction that mistake has been made, if two permissible view, finder cannot be clearly erroneous. 
    • findings of fact by jury: substantial evidence-most deferntitional, no rational juror.
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Civ Pro 2
2013-04-19 10:06:37

cooley civ pro 2
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