Civil Procedure II - Final Exam Questions and
Answers
Amendments to Pleadings - ANSWER-The General Rule: The sooner the better...
Permitted When:
1) As a matter of course
a. Within 21 days after serving it or within 21 days after plaintiff gets defendants
first response.
b. Defendant allowed similar right to amend.
i. Within 21 days after serving answer.
ii. Cut off by passage of time, not the plaintiff's actions.
c. When plaintiff amends (either by right or permission) the defending party must
respond (unless the court orders otherwise) within the time remaining to respond
to the original pleading or within 10 days after service of the amended pleading,
whichever is later.
2) Permissive amendment, with either:
a. A) Stipulation: Opponent's written consent, or
b. B) Motion: With leave of the court
i. Shall be "freely" granted when justice requires (Rule 15(a)(2))
3) At Trial: "Variance" and amendments "to conform to the evidence."
a. Court grants liberally...
b. Treated as if evidence was raised during pleading.
4. 4) On Appeal? See §1653
a. Almost never allowed.
b. Will only be allowed when there is no prejudice to the defense; it has nothing to
do with the trial.
Assertion and Waiver - ANSWER-Two ways to waive privileges or work product
protection - Even by accident:
1) Subsequent Disclosure:
i. Accidentally disclosed...
ii. May instruct your client not to answer:
1. When necessary to preserve a privilege
2. To enforce a limitation ordered by the court
3. Or to present a motion under Rule 30(d)(3)
,iii. Generally would object and let continue with answer, then next question
iv. If client answers questions anyways, privilege waived.
2) Failing to properly claim the privilege:
Party must:
1. Expressly make the claim, and
2. Describe the nature of the documents, communications, or tangible things not
produced or disclosed - and do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess the claim.
If the party accidentally shows something, may be able to keep out, depending on
whether the party took good faith efforts.
Claim Preclusion - ANSWER-Three Requirements:
1. Must show that both cases are by the same claimant against the same defendant
Don't Say: Need same parties...
2. The first case ended in a valid final judgment on the merits.
Includes:
i. ALL judgments for the plaintiff
ii. Any judgment based on a verdict, or summary judgment, or even default
Does NOT Include: Judgments for the defendant based on lack of jurisdiction,
venue or nonjoinder.
Every judgment is on the merits, unless it was based on jurisdiction, venue, or
indispensible parties.
3. Both cases are of the same transaction, even if the legal claims were distinct.
Claim =
i. Majority: The Transaction or Occurrence
ii. Minority: Primary Rights. Different claim allowed for each right that is invaded.
Claim Preclusion - Four Key Ideas - ANSWER-1. It does not matter who won the
first case. Loser and winner are both bound.
2. It does not matter whether the first case was correctly decided.
3. Not limited to claims that were actually litigated.
4. The point is to eliminate (or at least limit) "claim splitting."
Conclusions from Beacon Theatres and Dairy Queen - Three Rules: - ANSWER-1.
, Will determine the right to a jury issue by issue, not by the center of gravity
2. If an issue of fact underlies both law and equity, you get a jury
3. Generally jury issues will be tried first
a. Used to look at whether the case contained more of law or equity...
b. Judge will then be bound by the findings of fact from the jury...
Confidential Communications - Three Requirements: - ANSWER-1) Confidential
1. Attorney-client privilege does not protect everything lawyer knows.
a. What is confidential is broader than what is privileged
b. Attorney-client privilege only applies to what your client tells you, not what you
find out about your client from other means of discovery.
2) Communication - They only protect the communication - not the underlying
facts, and not pre-existing documents
It only protects confidential communications - those that you have kept and
intended to keep confidential
3) Capacity - Client or patient was communicating with the other in his professional
capacity (for example, as her clergyman, doctor, lawyer, or therapist).
Courts will determine to grant a motion for entry of default judgment based on: -
ANSWER-1) Whether the defendant's failure to respond is willful
2) Whether the plaintiff has been harmed by the delay
3) Whether the defendant has a meritorious defense to underlying case
Declaratory Judgment - ANSWER-A court order (judgment) that declares the rights
of any interested party.
Requirements - Must Be:
1) An independent basis for federal subject matter jurisdiction.
2) An actual "case or controversy."
Defendant must respond by... - ANSWER-Motion (NOT a Pleading)
Answer (Is a Pleading)
Denials - ANSWER-Failure to Deny is treated as an admission.
Exception: Damages cannot be admitted this way
Some denials need to made with particularity - Rule 9
Answers
Amendments to Pleadings - ANSWER-The General Rule: The sooner the better...
Permitted When:
1) As a matter of course
a. Within 21 days after serving it or within 21 days after plaintiff gets defendants
first response.
b. Defendant allowed similar right to amend.
i. Within 21 days after serving answer.
ii. Cut off by passage of time, not the plaintiff's actions.
c. When plaintiff amends (either by right or permission) the defending party must
respond (unless the court orders otherwise) within the time remaining to respond
to the original pleading or within 10 days after service of the amended pleading,
whichever is later.
2) Permissive amendment, with either:
a. A) Stipulation: Opponent's written consent, or
b. B) Motion: With leave of the court
i. Shall be "freely" granted when justice requires (Rule 15(a)(2))
3) At Trial: "Variance" and amendments "to conform to the evidence."
a. Court grants liberally...
b. Treated as if evidence was raised during pleading.
4. 4) On Appeal? See §1653
a. Almost never allowed.
b. Will only be allowed when there is no prejudice to the defense; it has nothing to
do with the trial.
Assertion and Waiver - ANSWER-Two ways to waive privileges or work product
protection - Even by accident:
1) Subsequent Disclosure:
i. Accidentally disclosed...
ii. May instruct your client not to answer:
1. When necessary to preserve a privilege
2. To enforce a limitation ordered by the court
3. Or to present a motion under Rule 30(d)(3)
,iii. Generally would object and let continue with answer, then next question
iv. If client answers questions anyways, privilege waived.
2) Failing to properly claim the privilege:
Party must:
1. Expressly make the claim, and
2. Describe the nature of the documents, communications, or tangible things not
produced or disclosed - and do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess the claim.
If the party accidentally shows something, may be able to keep out, depending on
whether the party took good faith efforts.
Claim Preclusion - ANSWER-Three Requirements:
1. Must show that both cases are by the same claimant against the same defendant
Don't Say: Need same parties...
2. The first case ended in a valid final judgment on the merits.
Includes:
i. ALL judgments for the plaintiff
ii. Any judgment based on a verdict, or summary judgment, or even default
Does NOT Include: Judgments for the defendant based on lack of jurisdiction,
venue or nonjoinder.
Every judgment is on the merits, unless it was based on jurisdiction, venue, or
indispensible parties.
3. Both cases are of the same transaction, even if the legal claims were distinct.
Claim =
i. Majority: The Transaction or Occurrence
ii. Minority: Primary Rights. Different claim allowed for each right that is invaded.
Claim Preclusion - Four Key Ideas - ANSWER-1. It does not matter who won the
first case. Loser and winner are both bound.
2. It does not matter whether the first case was correctly decided.
3. Not limited to claims that were actually litigated.
4. The point is to eliminate (or at least limit) "claim splitting."
Conclusions from Beacon Theatres and Dairy Queen - Three Rules: - ANSWER-1.
, Will determine the right to a jury issue by issue, not by the center of gravity
2. If an issue of fact underlies both law and equity, you get a jury
3. Generally jury issues will be tried first
a. Used to look at whether the case contained more of law or equity...
b. Judge will then be bound by the findings of fact from the jury...
Confidential Communications - Three Requirements: - ANSWER-1) Confidential
1. Attorney-client privilege does not protect everything lawyer knows.
a. What is confidential is broader than what is privileged
b. Attorney-client privilege only applies to what your client tells you, not what you
find out about your client from other means of discovery.
2) Communication - They only protect the communication - not the underlying
facts, and not pre-existing documents
It only protects confidential communications - those that you have kept and
intended to keep confidential
3) Capacity - Client or patient was communicating with the other in his professional
capacity (for example, as her clergyman, doctor, lawyer, or therapist).
Courts will determine to grant a motion for entry of default judgment based on: -
ANSWER-1) Whether the defendant's failure to respond is willful
2) Whether the plaintiff has been harmed by the delay
3) Whether the defendant has a meritorious defense to underlying case
Declaratory Judgment - ANSWER-A court order (judgment) that declares the rights
of any interested party.
Requirements - Must Be:
1) An independent basis for federal subject matter jurisdiction.
2) An actual "case or controversy."
Defendant must respond by... - ANSWER-Motion (NOT a Pleading)
Answer (Is a Pleading)
Denials - ANSWER-Failure to Deny is treated as an admission.
Exception: Damages cannot be admitted this way
Some denials need to made with particularity - Rule 9
