Term
| Rules of Decision Act (p.206) |
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Definition
| The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. |
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| State judge made law is not required to be followed. Federal Courts could create Federal general common law |
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| No general federal common law; Subtantive - state/ procedural - federal |
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| York v. Guaranty Trust (Outcome Determinative Test) |
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| Is it going to significantly impact the outcome of a case if state law is not applied. Outcome determines the label (If important = substantive; if not = procedural) |
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| 1. Determine the rule or obligation is tightly connected to overall rule. (So bound up w/ state created rule/obligation that it needs to be applied)[If yes, go to state law b/c subs. if no, go to 2] 2. Look at outcome det test b/c it can still have an impact on the outcome [If yes, go to 3. if no, then procedural] 3. Weigh whether federal interest interest outweighs the state interest |
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| Modifies Outcome Det. Test. Need to consider twin aims of Erie from the beginning of the action. 1. Avoiding forum shopping. 2. inequitable administration of the laws. Is the applicable federal rule or statute in direct collision with the law of the relevant state? If yes, does the the federal law transgress the rules enabling act and does violate the powers given court by the Constitution? |
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| 1. Look to see if there is a federal rule on point? If no, go to 2. Erie analysis with suggestion to use modified deter. Test |
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| Sets out the pleadings available in federal court: 1. a complaint 2. an answer to complain 3. an answer to a CC designated as a CC 4. an answer to a crossclaim 5. a 3rd party complaint 6. an answer to 3rd party complaint 7. If the court orders one, a reply to an answer |
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| Rules Enabling Act (1934) |
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Definition
| 1. Create uniform federal procedure 2. expands discovery 3. abolishes separate systems of law and equity 4. gets rid of fact pleading in favor of notice pleading |
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Contents of Pleadings:
Short and Plain statements on:
1. Court's jurisdiction (subj matter)
2. the claim showing that the pleader is entitled to relief
3. Demand for relief sought |
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| Pleading standard "All the rules require is a short and plain statement of the claim that will give D fair notice of what the P's claim is and the grounds upon which it rests." |
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| Each allegation must be simple, concise and direct |
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| A party may set as many separate claims or defenses as it has, regardless of consistency [Can only do this if you don't know the truth otherwise violate rule 11] |
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| A party can set out two or more statements of a claim or defense. If there are alternative statements, the pleading is sufficient if any one of them is sufficient |
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| Complaint needs to be plausbile on it is face. Enough facts to raise a reasonable expectation that discovery will reveal evidence. Need more then mere coincidence |
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| Uses standard from twombly. Case must be plausabile on its face (more then a shear possibility and not based on conclusory allegations. Need to show enough facts that it is not conclusory |
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| Heightened pleading standards for fraud and mistake |
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| Form of pleadings: gives guidelines for pleading |
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| D must be served with summons and the complaint (process) |
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| What a summons must contain |
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| Serving an individual in a foregin country |
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| Service for corportations |
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| Serving an individual w/in a judicial district of the US: Follow state law where district court is located or the state where service is made or alterntiave under (2) |
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| D must be served with summons and the complaint |
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| D may waive service. Without waiver only have 21 days to respond from date of ervice. If you don’t waive w/out good cause, D has to pay cost of service |
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| Serving a minor or incompetent person |
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Territorial limmits of effective service Bulge Rule.
Courts take jurisdiction of state + 100 miles. |
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| Time Limit for service: If a D isn't served w/ 120 days after complaint is filed, the cort must dismmis the action without prejudice against the D. P can show good cause for failure and receive extension |
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| Time to serve a responsive pleading: Def must serve an answer or party serve an answer to CC or cross claim within 21 days after service. If timely service waived under 4(d), w/in 60 days after the request for a waiver was sent or w/in 90 days after to was sent to D outside US |
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| How to present defenses. Every defenste to a claim of relief in any pleading must be asserted in the responsive pleading if one is required. A party may assert the follow defenses by a motion: 1. lack of SMJ 2. Lack of PJ 3. improper venue 4. insufficient process 5. insufficient service of process 6. failure to state a claim upon which relief can be granted (motion to dismiss) 7. failure to join a party under rule 19 [these motions must be asserted b4 pleading] |
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| Motion for judgment on the pleadings [filed after D answers] |
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| Motion for a more definite statement: Asks for a more clarified statement when complaint is too vague [filed b4 answer] |
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| Motion to strike: court may stike from a pleading an insufficient defense or other matter. On its own or by motion w/in 21 days after being served with pleading |
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| Joining motions: A motion under this rule may be joined with any other motion by this rule (2): a party that makes a motion under this rule can't make another motion under this rule raising a defense or objection that was available to the party but omitted from earlier motion |
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| waiving and preserving certain defenses (1) a party waives any defense listed in 12(b) 2-5 by omitting it from a motion in the circumstances described in 12(g)(2) or by failing to either make it by motion under this rule or include it in a responsive pleadaing or in an amendment allowed by rule 15(a)(1) as a matter ofc ourse (2) when to raise other (3) anytime lacking SMJ can be dismissed |
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| Counting days for motions, notices of hearing, and affidavits |
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| Additional time after certain kinds of service |
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| Serving and filing pleadings and other papers [All service after original service] |
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| D must deny each claim specifically. D may also say lacks sufficient knowledge regarding particular allegation = denial. |
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| Affirmative Defenses must be raised or waived |
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| Amending as a matter of course and other amendments by the leave of the court |
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| Amendments during and after trial |
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| Leave will be freely given. Won't allow amendment if: undue delay, bad faith, repeated failure to cure deficincies by prev. amendments, undue prejudice to opposing party, futility of amendment |
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| Relation Back doctrine: allows a claim to be allowed in later if allowed by this provision |
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| The law providing SOL allows relation back |
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| Transactional test that involves joinder. New claim is so related to orig. claim that it should relate back to orig claim |
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| The amendment changes the party or the naming of the whom a claim is asserted. Must statisfy 15©(1)B) and Rule 4(m) gives time limit for service. Either 120 days or an extended period. This time period helps determine appropriateness of notice received |
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| Supplemental pleading (anything after suit is filed) Cannot be done as a matter of course. You need court's permission when its "on just terms." Can also fix defective claims or defenses |
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| Looks at representations to the court and sanctions. Limits what can be done in cour. Lawyers must make sure that the claims they make have evidentiary backing (reasonable investigation) |
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| What requires a signature by an attorney or the party if unrepresentedMust sign the document but does not require affidavit unless specifically required. Court must strike unsigned paper unless promplty corrected |
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| You are certifying what you are turning into court. (1) prevents frivilous cases and bad faith (2) Protects those with novel claims (3) factual allegations need to have or are likely to have evidentiary support after discovery (4) deals w/ answer= looks at rule 8 denials (need to be based on evidence or reasonably based belief) |
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| May impose sanctions for 11(b) violations. Law firm also must be accountable |
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| Separate from other motions and describe specific conduct. Served under rule 5 but cannot be filed w/ court until 21 days (safe harbor) after service to party to allow fixing of problem |
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| Court can issue on own order but lawyer has a chance to show cause why conduct did not violate 11(b) |
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| Sanction should what is necessary to deter. Attorney's fees are now a last resort |
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| Cannot issue monetary sanctions when a) against a represented party for 11(b)(2) violation or B) on its own, unless it issued a show cause order b/c vlountary dismissal or settlement of the claims made by or against the pary that is or whose attorneys are to be sanctioned |
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Definition
| This rule does not apply to disclosures and discovery (26-37) |
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| Joinder: once an anchoring claim is laid, as many claims as possible can be leveled against the opposing party. [Only relates to pleading and doesn't guarantee SMJ (need to do analysis)] |
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| New claim against original party typically put in answer. Need to be answered w/in 21 days of service of CC [12(a)(1)(B)] |
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| Response to orig claim that makes that claim invalid |
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| Compulsory CC. Must state as a CC any claim that - at the time of service - the pleader has against an opposing party if the claim (a) arises out of the transaction or occurrence that is SM of the opposing party's claim [logical relationship] and doesn't require adding another party over whom the court cannot acquire jxn (typically not an issue w/ compulsory if transactional will pass 1367 test) [Dont use them use lose them] |
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| Pleader need not state claim if A) the claim was the subject of another pending action or B) the poopsing party sued on its claim by attachment or other process that didn't esablish PJ over the pleader on the claim |
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| Permissive CC: A pleading may state as a CC against an opposing party any claim that is not compulsory [typically will need independent SMJ] (Should be supplemental for convenience under court's discretion) |
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| CC maturing or acquired after pleading: Ct. may permit filing of a supp pleading asserting a CC that matured or was acquired after serving an earlier pleading |
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| Crossclaim against a coparty: All are permissive. Uses the same sort of test as 13(a). As many as u want as long as SMJ. Once a valid Cross claim is filed, the answer must be received w/ in 21 days (required to answer) [can counterclaim to crossclaim] |
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| Ps who may join or be joined permissively. May join if (a) they asser any right to relief jointly, severallym or in alternative w/ respect o or arising out of the same transactions, ocurrence or series of trans or occur and (B) any ? Of law or fact common to all Ps will arise in the action |
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| Maybe joined in one action as D if same as (a)(1) except is asserted against |
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| Misjoinder and non joinder of parties |
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| Consolidation: If actions involve a common ? Of law or fact court may join for hearing or trial, consolidate the actions, issue any other orders to avoid unnecessary costs |
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| Impleader - allows bringing in of 3rd parties |
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Defendant Impleaded Third Parties:
D may implead a 3pD when they are liable in part to the D (is a permissive rule) |
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| P may implead a third party when that party may be liable in part to counterclaim against P |
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| 1. Determine if absent party is necessary 2. if necessary is it feasible to join (if yes, must be joined) 3. if no is the absence so essential that the case cannot go on in the absence |
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| Persons required to be joined if feasible: Required party: a person who is subject to service of process and whose joiner will not deprive the court of SMJ must if: A)in that person's absence the court cannpot accord complete relief among existing parties or B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: i) as a practical matter impair or impede the person's ability to protect their interest or ii) leave an existing party subject to a substantial risk of uncurring multiple inconsistent obligations b/c of the interest |
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When joinder isn't feasible: Court must determine whether in equity and good conscience the action should proceed among the exisiting parties or be dismissed. Must consider: i. Whether in equity & good conscious that action should proceed as is OR may be dismissed by the court b/c the party in question is indispensable
ii. Factors to be Considered (court has A LOT OF DISCRETION here, as opposed to the first two prongs which require strict construction)
1. Whether a judgment in their absence would prejudice themselves or other parties
2. Whether the prejudice can be lessened or avoided (option to intervene & raise objections)
3. Whether a judgment in their absence will be adequate
4. Whether the Π will have adequate remedy if the action is dismissed as the result of non-joinder
iii. If a party is indispensable, but cannot be joined then the action should be dismissed |
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| Handles notification when there is a constitutional challenge to a statute |
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| Intervention - Permits outside parties to join w/out action by existing parties (limited by § 1237 & still must satisfy jurisdictional requirements) |
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i. (a) Intervention as of Right (court has to let you intervene, but this right is not automatic b/c court has discretion to decide if the requirements are satisfied)
1. Upon timely petition anyone can intervene when:
a. A statute confers the unconditional right; or is a Constitutional challenge
b. There has to be some interest (proof) that something is at stake in this lawsuit
c. Movant must be situated where their pretense as a practical matter is needed or desired in this lawsuit
d. Movant’s interest must not be adequately represented by the existing parties |
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b) Permissive Intervention (court uses a lot of discretion)
1. is given a conditional right to interven by a federal statute or
2. has a claim or defense that shares with the main action a common question of law or fact |
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| i. Interpleader enables a party against whom conflicting claims to the same debt or property are asserted (the “stakeholder”) to join all adverse claimants in one action & to require them to litigate among themselves to determine who if anyone has a valid claim to the property. Once the stakeholder deposits the funds w/ the court he can be discharged from the litigation, unless he also claims the asset. |
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Rule Interpleader a. Persons having claims against the Π may be joined as Δs & required to interplead when their claims are such that the Π is or may be exposed to double or multiple liability
i. Not a valid objection that claims aren’t of common origin & adverse, or liability isn’t in whole
b. Works both ways Δs can cross-claim or counter-claim interpleader
c. More stringent requirements
i. Complete diversity btw stakeholder w/ claim greater than $75,000 & all the claimants OR is a federal question
ii. § 1391 Venue requirements
iii. Rule 4 service
*** Only time Rule Interpleader is used is when all of the claimants are from the same state & diverse from the stakeholder b/c the requirement of claimant diversity would not be met under Statutory Interpleader*** |
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| Federal Interpleader Act § 1335, 1337, 2361 |
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Definition
Statutory Interpleader: a. Far more useful b/c it has much less stringent requirements
i. 2 or more claimants of diverse citizenship (minimal diversity)
ii. $500 controversy requirement
iii. Nationwide service by marshal
iv. Liberal Venue Provisions as long as one of the claimants lives there |
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Required Intial disclosures: Except for categories stipulated by 26(a)(1)(E) [EXCEPTIONS] or to the extent otherwise directed by order, a party MUST w/out awaiting discovery request, provide to the other parties:
1. Name, address, and number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, identifying the subjects of the information UNLESS solely for impeachment purposes
2. Copy of or description by category and location, all documents, data, and tangible things in possession, custody, or control that may be used for claims or defenses UNLESS solely used for impeachment
3. Computation of the Damages Claimed (and everything these calculations are based on)
4. Insurance Agreements |
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| Proceedings exempts frpm intial disclosure |
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i. Overview
1. Parties may obtain discovery regarding any matter, not privileged that is relevant to the claim or defense of any parties, including existence, description, nature, and custody, etc.
2. Relevant Evidence (Fed. Rule of Evidence 401) means evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action, more probable or less probable than it would be w/out the evidence
a. THUS, the relevant evidence does not need to be admissible at trial if the evidence contains facts that would lead to discovery of evidence admissible at trial then the court is going to permit discovery (can’t object on grounds such as hearsay)
b. Discovery is generally a very liberal process court takes a broad view of relevance under the scope of Rule 26(b)(1)
[subject to limitations 26(b)(2)(C) |
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Definition
| proctective order against discovery. Must attempt in good faith attempt to rectify before moving with court for the order |
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Limitations on the frequency and extent: If court determines that disc. Is not proportionate there is a point where the burden is undue even if the info is relevant. Factors: the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. |
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| Specific limtations on Electronically Stored info (ESI). Limits info if it is not reasonably accesible b/c of undue burden or cost. Someone can file a motion to compel the info and the burden is on the other to show that it is not accessible. Even if burdensome, court can look to 26(b)(2)(C) to see if the info needs to be released. |
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Term
| Zubulake cost shifting factors |
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Definition
| Typically cost will go to producing party unless there is undue burden. If undue burden may shift costs, 1. The extent to which the request specifically tailored to discover relevant info 2. Availability of such info from other sources 3. Total cost of porduction, compared to AIC 4. Total cost of production, compared to the resources available to each party 5. Relative ability of each party to control costs and its incentive to do so 6. Importance of the issues at stake in the litigation 7. Relative benefits to the parties of obtaining the info |
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| Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation by or for another party or its representative. Subject to 26(b)(4) those materials may be discovered if: i) they are otherwise discoverable under 26(b)(1) and ii) party shows that it has substantial need for the materials to prepare its case and cannot without undue hardship obtain info elsewhere |
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| If ct orders discovery of this info, it must protect against disclosure of mental impressions etc of a party's atttorney or other representative concering litigation |
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| Any person may, on request without a showing, obtain the person's own pervious statement about the action or its subject matter |
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| When you withold info otherwise discoverable by claiming that it Is priviledged or subject to protection as trial prep materials, the party must: i) expressly make the claim and ii) describe the nature of the item in a way that will allow the protection claim to be assessed |
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| Federal Rules of Evidence 502 |
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Definition
| Inadvertent disclourse. Will allw documents to remain protected if : 1. disclosure is inavertent 2. reasonable steps were in place to prevent 3. promptly rectify error following 26(b)(5)(B). 502(a) limits scope of subj matter: waiver extends to undisclosed i communiccation or info if: 1. intentional waiver 2. communications concern same subj matter 3. in fairness they should be considered together. 502(d) allows a court to order that privilege is not waived by disclosure to a 3rd party |
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| inadvertent documents will be given back and doesn’t waive privilege (part of party agrred upon protection) |
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| Let other side look at docs and telll you what is important so you only have to do a limited review |
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| Information provided. Shows steps of what to do if info produced in disccovery is subject to privilige or protection |
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| Conference of the parties; planing for discovery Must be done as early as possible |
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| Conference content and party responsibilities. Must discuss nature and basis of claims and defenses and the possibilities of resolvoing. Discuss disclosure, preserving discoverable info and develop a proposed plan Need a report laying out discovery plan w/in 14 days |
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| Discovery plan: must the parties views and proposals on a number of topics |
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| Failure to disclose or supplement. If a party fails to provide info or identify a witness as required by 26(a) or (e), the party isn't allowed to use that infor to supply evidence unless the failure was substantially justified or harmless. |
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| Requests for admission. Must be specifically responded to. If you know they can't deny, you should RFA |
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| Pretrial conferences and scheduling; Includes whole case and guides it: list all witnesses, list all objections to witness and objections, descrip of case and facts, come up w/ list of stipulated facts, ?s for jury selection, expert witness order (all of these items must be included in pretrial order |
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| Stipulations ab discovery procedure |
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| Using Depositions in court proceedings |
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| Interrogatories; only can be made on parties |
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| Entering a default: When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend and that failure is shown, a clerk must enter the partyy's default |
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| Entering a default judgment: by clerk or court |
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| Dismissal of actions: Voluntary dismissal by the P |
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| Involuntary dismissal: If P fails to prosecute or cimply w/ rules, a D can move for motion to dismiss [operates as adjudication on the merits |
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| Dismissal of CC, crossclaims and 3rd party claims |
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| Summary judgment: by a claiming party; may move, with or w/out supporting affadavits on all or part of claims |
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| Summary judgement by a defending party |
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| Time for motion, response and reply. A party may move for summ judg at any time until 30 days after the close of all discovery. A party opposing the motion must file a response w/in 21 days after the motion is served or a responsive pleading is due and the maovant may file reply w/in 14 days after response is served |
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| Judgment should be rendered if the pleadings, discovery and discloures materials on file and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to the judg as a matter of law |
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| If summ judg doesn’t get rid of whole case |
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