The Pleadings
What is the nickname for the rule 8(a)(2) test?
Twiqbal!
What FRCP governs amending the pleadings
rule 15
How many written interrogatories are allowed by rule 33?
25
What standard is used for adjudication before trial?
Summary Judgment
What are the two routes to have SMJDX?
What is the tallest mountain in the world?
Mt. Everest
Two step test for rule 8(a)(2) simplified
ID Conclusory Allegations
Assess Plausibility
What are the 5 Foman Factors
Undue delay
Bad faith/Dilatory motive
Undue prejudice
Repeated failure to cure
Futility
What are the three discovery privileges?
Attorney-Client, Corporate, and Attorney Work Product
What is the difference between SJ and JMOL?
SJ looks at courts prediction of P’s evidence that may be presented at trial
JMOL looks at the actual evidence presented at trial
What is res judicata also known as?
Claim preclusion
*TRIPLE JEOPARDY*
Why is Ohio the worst state in the country?
Too long of a list to fit in this template
How does rule 8(a)(2) differ from the code pleading standard and what FRCP most aligns with that standard?
No need for specific facts in rule8(a)(2), code pleading most similar to rule 9(b), heightened specificity for fraud
How do rule 15(c)(1)(B) and 15(c)(1)(c) differ?
15(c)(1)(B) if for relataion back for amendments and 15(c)(1)(c) is for relation back for a name change
What must a party do before filing a motion to compel?
they must in good faith confer or attempt to confer with the failing party before resorting to a court action
When do you have a right to a jury trial in civil actions?
Jury trial may be demanded in suits concerning the determination of legal rights
- Is the claim analogous to one that would have been brought in a court of law?
- Does P seek relief traditionally available in court of law? For $$ damages?
When does non-mutual issue preclusion apply and what are the two types?
When a person who is not a party to C1 now seeks to invoke issue preclusion to take advantage of a favorable ruling, can be offensive or defensive
What is Sam's favorite color
Blue
Overarching requirement for rule 11 (sanctions)
Inquiry reasonable under the circumstances
When is a proposed amendment (not name change) futile?
If no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense. i.e. a proposed amended complaint is futile if it would be immediately subject to dismissal.
OR
If SOL expired and the new claim does not arise out of the same conduct/transaction/occurrence
What is the difference between attorney-client privilege and the work product doctrine?
ACP protects clients and WPD protects non-clients (witnesses and non-parties involved in a suit)
What are material facts?
Facts that may affect the outcome of the resolution of a claim/defense
- Tends to prove/disprove a necessary element of a claim or defense
How to calculate Substantial and Unjustifiable risk? (Hint: not a civ pro question ;-))
Probability x Graity of Harm + Reasons for taking harmful action
What clothing company was founded in San Francisco during the gold rush?
Levi's
What is the goal of Rule 11 sanctions (and what is not the goal)
The goal of rule 11 sanctions is correction of litigation abuse, not wholesale fee shifting (to deter lawyers from doing sanctionable stuff)
When is a party allowed to amend as a matter of course?
within 21 days of being served:
- The complaint OR
-A 12(b) motion
*DOUBLE JEOPARDY*
What is required in the mandatory initial disclosures? (Rule 26(a)(1))
Without awaiting a discovery request, parties must provide:
- Names of individuals who parties may use to support its claims or defenses
- Documents in their possession or control to support its claims or defenses
- Damages calculations or insurance info
How can a new trial be granted through a Rule 59 motion?
Cases where there were errors in the trial process
- Improper admission of evidence
- Improper jury instructions
- Jury misconduct
What is the minimum contacts test?
(1) whether the defendant has “purposefully availed” itself of forum benefits by engaging in activities in (or directed at) the forum state;
(2) whether these activities “give rise or relate to” the liability sued on; and
(3) whether the exercise of jurisdiction over the defendant is otherwise “reasonable.”
All 3 prongs must be established for justification
What country's capital is at the highest elevation?
Bolivia (La Paz)
Define threadbare/formulaic recitations of the elements and naked assertions with examples of each
Formulaic recitals of the elements simply just state the facts that define what is required for the alleged illegal conduct to occur.
Naked assertions devoid of factual enhancement are unverifiable, lack details of real-world events, and simply state what P alleges with no further facts showing that the statement is true.
When is a proposed name change futile?
If one of the following is not satisfied:
Within 4(m) period (90 day window) party to be brought in by amendment
- Received such notice of the action (knew there was a lawsuit); and
- Knew or should have knew they were the intended target of the lawsuit; and
- Knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity (there was a mistake)
What are the requirements to compel discovery of work product that is normally privileged?
May be discovered if the party shows a substantial need for the materials to prepare its case and cannot obtain them by other means without undue hardship
- Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.
- Production might be justified where the witnesses are no longer available or can be reached only with difficulty.
What is the CELOTEX method?
Showing that P does not have enough evidence to satisfy their burden of proof at trial on essential element of their claim
- No reasonable jury could reach P’s desired conclusion
- Record is devoid of the evidence P needs
- If there is an issue with maybe a failure to state a claim, consider if there are obvious alternative explanations (i.e. rule 8(a)(2) test)
What are the Parklane Factors?
- Would it encourage potential litigants to wait and see? (how easily could they have joined in the first lawsuit)
- Would it be unfair to foreclose D from litigating the issue now because it was previously decided in a forum not of D’s choosing?
- Restrictive procedural rules
- Inconvenient venue
- No incentive to aggressively litigate
- Are there prior inconsistent judgments on this issue? Which may suggest that it would be unfair to give conclusive effect to any one of them
What is the staple flavor base of all french cooking?
A mirepoix
*DOUBLE JEOPARDY*
What is one of the hypotheticals that the dissent in Iqbal used to explain when allegations should not be taken as true (you have to be specific here... it is double jeopardy after all)
"The sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel. That is not what we have here."
What happened in Gutierrez v. Johnson and Johnson?
- Class action against J&J for baby powder causing health issues
- P filed a motion for Leave to Amend their 5th amended complaint
- Motion granted because the proposed amendment satisfied the Foman factors
What is a Rule 37(a) motion?
Motion for Order Compelling Disclosure or Discovery
Explain the Adickes standard and what happened in that case
Affirmatively producing evidence to disprove a material fact, to negate an essential element of P’s claim. D can argue that:
- A jury must believe D’s evidence because it blatantly contradicts P’s contrary evidence, or
- D’s evidence must be taken as true because P has cast no more than a “metaphysical doubt” on the credibility of D’s uncontradicted evidence
In Adickes: Civil rights in the south, racist diner, conspiracy claim
What is the Erie Doctrine?
Common law regarding state statutes can only be created by state courts but must be used by federal courts when deciding cases regarding state laws.
substantive state law applies in diversity suits, whether that law has been codified by statute or developed by the state courts’ decisional law.
Who was the third U.S. President?
Thomas Jefferson