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Federal Civil Procedure - JRH
Bar Prep

Additional Law Flashcards




Six Big Topics
  1. Are We in the Right Court?
  2. Learning About the Case
  3. Multiparty Litigation
  4. Adjudicating the Dispute
  5. Appellate Review
  6. Preclusion
Are We in the Right Court?
  1. Personal Jurisdiction
  2. Subject Matter Jurisdiction
  3. Venue
Personal Jurisdiction (PJ)
  • PJ is about the court's power over the parties
  • The big question is PJ over defendant
  • PJ involves one question: can P sue D in this state
  • Two Step Analysis for PJ:
    1. Satisfy a state statute AND
    2. Satisfy the Constitution (Due Process)
  • Whether a federal court in a state has PJ is assessed exactly the same way as whether a state court would have PJ
In Personam Jurisdiction
  • P sues to impose personal obligations on D
  1. Statutory Analysis: Each state is free to have its own statutes for in personam jurisdiction. In most states the statute says jurisdiction is OK if the case meets the constitutional test.
  2. Constitutional Analysis: Does D have "such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice"?
    • Factors:
      1. Contact
      2. Relatedness
      3. Fairness
  • There must be a relevant contact between D and the forum state
  • Two Factors:
    1. The contact must result from purposeful availment: D's voluntary act
      • Examples:
        1. Marketing a product in the forum
        2. Using the roads in the forum
        3. Establishing domicile in the forum
        4. Traveling in the forum
        5. Sending tortious e-mail in the forum
    2. Foreseeability: It must be foreseeable that D could be sued in this forum
  • Relatedness between the contact and P's claim
  • Does P's claim arise from D's contact with the forum?
    • If yes, the court might uphold PJ even if D does not have much contact with the forum (depending on whether PJ would be fair)
      • Specific PJ: Where the claim arises from D's contact with the forum
    • If no, jurisdiction is OK only if the court has General PJ. if so, D can be sued there for a claim that arose anywhere in the world
      • General PJ: D must be "at home" in the forum
      • A human is always at home where domiciled
  • A corporation is always at home:
    1. Where incorporated, and
    2. Where it has its Principal Place of Business (PPB)
  • Fairness factors are only assessed in Specific PJ cases
  • Not assessed if there is General PJ, once we find D is "at home" in the forum we don't look at fairness
  • Factors:
    1. Burden is on the D and witnesses
      • Even if it is hard for D to travel to the forum and to get her witnesses to the forum, the forum is constitutionally OK unless D can show that it puts her at a severe disadvantage in litigation (very difficult to meet)
    2. State's Interest
      • The forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters
    3. Plaintiff's interest
      • Maybe injured and wants to sue at home
"Traditional" Bases of In Personam Jurisdiction
  • If D is voluntarily in a state that is not his domicile, he can be served with process for a suit in that state
  • This "tag jurisdiction" makes D subject to General Jurisdiction
  • D can always waive and consent to PJ, even in a state in which she has no contacts
In Rem and Quasi in Rem Jurisdiction
  • Power is not over D herself, but over D's property in the forum
  • Property must be attached by the court at the outset of the case
  • To be constitutional, D's contacts with the forum must meet the constitutional test applied in in personam jurisdiction
Subject Matter Jurisdiction (SMJ)
  • Basic Idea: This is about the court's power over the case
  • State courts can hear any kind of case; they have General SMJ
    • Minor Exception: Cases under a few federal laws must be brought in federal court, e.g., patent infringement, bankruptcy, some federal securities and antitrust claims
  • Federal courts have Limited SMJ, can only hear certain kinds of cases
    • Two Main Types:
      1. Diversity of citizenship (includes alienage)
      2. Federal Question
Diversity of Citizenship (and Alienage) Cases
  • Two Requirements:
    1. The case is either
      • Between "citizens of different states" (diversity), or
      • Between "a citizen of a state and a citizen of a foreign country" (alienage);
    2. The amount in controversy exceeds 75K
Right Kinds of Litigants for Diversity or Alienage Cases
  1. Complete Diversity Rule: No good in any P is a citizen of the same state as any D
    • On Bar they may refer to this as "diversity of citizenship"
  2. Citizenship of a natural person (human) who is a U.S. citizen is a citizen of the state in which she is domiciled
    • Everyone has a domicile, and you retain it until you change it
    • A human can be a citizen of only one state at one time
    • Establishing Domicile takes 2 Things:
      1. Physical Presence, and
      2. The intent to make that your home permanently or for an indefinite period of time
        • For intent courts look at all relevant factors (taking a job, buying a house, registering to vote, etc.)
    • Test for diversity when the case is filed
    • We do not care what happens to citizenship after the case is filed or what the citizenships were  before the case was filed
  3. Citizenship of a Corporation:
    1. Every state or country where incorporated, and
    2. The one state or country of its PPB
      • Usually there is one place of incorporation
      • A Corporation can be a citizen of two states at the same time
      • PPB: Where managers direct, coordinate, and control corporate activities
  4. Citizenship of Unincorporated Association:
    1. Refers to things like limited partnerships and LLCs
    2. The citizenship for these entities is the citizenship of all its members
  5. Citizenship of decedents, minors, or incompetents:
    • Such persons must sue or be sued through a representative
    • Representative's citizenship is irrelevant
    • Use citizenship of minor, decedent, or incompetent
Amount in Controversy
  • In addition to complete diversity or alienage, P's claim must exceed 75K
    • You cannot count interest on the claim
    • BUT sometimes you might be suing to recover interest as the claim
  • Whatever P claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than 75K
  • A P who wins less than 75K may have to pay "costs"
    • "Costs" are litigation expenses, e.g., filing and discovery expenses
    • Costs never include attorney's fees
    • Each party is required to pay their own attorney's fees unless some law provides for "fee shifting"
  • Aggregation: Adding two or more claims to meet the amount required
    • We aggregate the claims of any 1 P vs. any 1 D
    • Factually unrelated claims can be aggregated
    • There is no limit on the number of claims that can be aggregated
  • For joint claims use the total value of the claim (such as a claim against joint tortfeasors)
    • With joint claims, the number of parties is irrelevant
  • Equitable Relief: P sues D for an injunction to tear down part of his house that blocks P's view
  • Two Tests: If either is met, court says OK
    1. Plaintiff's Viewpoint: Does the blocked view decrease the value of P's property by more than 75K?
    2. Defendant's Viewpoint: Would it cost D more than 75K to comply with the injunction
  • The federal will not hear the following kinds of cases:
    1. Divorce
    2. Alimony
    3. Child Custody
    4. Probate of an Estate
Federal Question Cases
  • The claim in P's complaint "arises under" federal law
    • Citizenship of parties not relevant
    • Amount in Controversy not relevant
  • Well Pleaded Complaint Rule:
    • It is not enough that some federal law issue is raised by the complaint
    • P's claim itself must "arise under" federal law
    • Look at the claim and ignore other material P alleged
  • Ask: Is P enforcing a federal right?
    • If yes, case can go to federal court under FQ jurisdiction
    • If no, case cannot go to federal court under FQ jurisdiction
Supplemental Jurisdiction
  • When a case is in federal court, additional claims may be added
  • Each additional claim must meet either the diversity or FQ requirement for the court to have federal SMJ
  • Court can still hear the claim if it invokes supplemental jurisdiction
  • SJ does n
  • ot get a case into federal court, the case is already there
  • SJ gets claims into that case, even though the claims do not meet diversity or FQ
  • To get SJ there are Two Steps:
    1. The Test: The claim we want to get into federal court must share a "common nucleus of operative fact" with the claim that invoked federal SMJ
      • The test is always met when a claim arises from the same transaction or occurrence (T/O) as the underlying case
    2. The Limitation: BUT by statute certain claims cannot invoke SJ even though they meet the test
      • The limitation applies only in diversity cases
      • In diversity cases, the limitation takes away SJ only for claims by one joined as a P
      • The limitation does not take away SJ over claims by Ds or Third-Party Ds or D intervenors
      • *So the limitation is: in a diversity case, claims by Ps cannot invoke SJ
  • One Exception to the Limitation: When there are multiple Ps and one of them does not meet the Amount in Controversy requirement
  • Even if requirements of SJ are met, court still has discretion to decline
  • It can do so if the state law claim is complex or state law issues would predominate the case
  • More likely scenario is when the claim that got the case into federal court is dismissed early in the case
Summary of SJ
  • A non-federal, non-diversity claim can be heard in federal court if it meets "the test" UNLESS:
    1. Asserted by P
    2. In a diversity of citizenship (not FQ) case and
    3. It's not like Hypo SJ #4 (pg. 17 of Handout)
  • D sued in state court might be able to "remove" the case to federal court
  • Removal transfers case from a state trial court to a federal trial court
  • If removal was improper, federal court can "remand" the case back to state court
  • D must remove within 30 days of service (not filing) of the first paper that shows the case is removable
    • Usually means within 30 days of service of process
  • All Ds who have been served with process must join in removal
  • D removes to the federal district "embracing" the state court where the case was filed
Cases That Can Be Removed
  1. General Rule: D can remove a case that meets the requirements for diversity of citizenship or FQ
  2. Two Exceptions (only apply if removing on the basis of diversity)
    1. No removal if any D is a citizen of the forum (instate D Rule), AND
    2. No removal more than one year after the case was filed in state court
How Ds Remove a Case
  • P sues D in state court, D wants to remove, does not need permission from state or federal court
  • D files "notice of removal" in federal court stating grounds of removal, which means federal SMJ
  • In all cases, D attaches all documents that were served on her in state action
  • She serves a copy of the "notice of removal" on adverse parties
  • Then she files copy of "notice of removal" in state court
  • When P sues D for exactly 75K or less, D can still remove because what P claims in the complaint does not limit what she can recover
    • D can remove by alleging that the amount in fact exceeds 75K
    • Federal court will hold a hearing and burden is on D to show by preponderance of the evidence that the amount exceeds 75K
P Wants to Remand
  • If P thinks removal is improper for some reason other than lack of SMJ, she must move to remand no later than 30 days after the notice of removal was filed in federal court
    • If she does not she waives the right to have the case remanded
  • If P thinks removal was improper because the federal court lacks SMJ, she can move to remand at any time
    • This is never waived
  • If D removes a diversity case but there was an instate D, this is not considered a problem of SMJ, so P must move to remand within 30 days of filing of notice of removal or she waives the right to have case remanded
What Laws Apply in Federal Court
  • Eerie Doctrine
  • Approach in 3 Steps:
    1. Ask: is there some federal law on point that directly conflicts with state law
      • If so, apply the federal law as long as it is valid under the Supremacy Clause
      • A federal law is valid if it does not modify substantive rights; probably met if the Rule is "arguable procedural"
    2. If there is no federal law on point, the federal judge must apply substantive state law, Four Issues are clearly substantive:
      1. Elements of a claim or defense,
      2. Statute of Limitations
      3. Rules for tolling statutes of limitations, and
      4. Conflict of law rules
        • On these 4 Issues the court will apply state law
    3. If there is no federal law on point and the issue is not one of the 4, the federal judge must determine whether the issue is substantive; Some Factors:
      1. Outcome Determinative: If applying or ignoring state rule would affect outcome of case, probably substantive, use state law
      2. Balance of Interests: Does either federal or state system have a strong interest in having this rule applied?
      3. Forum Shopping: If the federal court ignores state laws on this issue, and it causes parties to flock to federal court, apply state law
Federal Common Law
  • Erie means there is no general federal C/L
  • General C/L of torts, contracts, and property is state law, and federal courts must apply state substantive law in a diversity case
  • There are areas in which federal courts are free to make up C/L of there own:
    1. Congress passes a statute creating a new claim but fails to provide a SoL for that claim, they make up their own C/L
    2. Other examples: international relations, admiralty, disputes between states, the right to sue a federal officer for violating one's federal rights
  • Basic Idea: Venue tells us which federal court to sue in, country divided into federal districts
  • P may lay venue in any district where:
    1. ALL Ds reside or
    2. A substantial part of the claim arose
  • Note: These do not apply if the case was removed, there venue is in the federal district embracing the state court
  • These rules are for cases filed initially in federal court
  • A substantial part of a claim can arise in more than one district
    • Might arise where defective product was manufactured AND where P was injured
    • Might arise where the contract was entered and where it was to be performed
  • For venue it does not matter where P resides or whether its a diversity or FQ case
  • If D does not reside in the U.S., venue is proper in any federal district
  • But if another D does reside in the US, venue must be proper as to her in accordance with the rules above
Where Ds Reside for Venue Purposes
  • A human resides in the district where domiciled
  • A business (corporation or unincorporated) resides in all districts where they are subject to PJ for this case
Transfer of Venue
  • A federal district court may transfer the case to another district
  • Original court is the "transferor" and the one to which the case is sent is the "transferee"
  • Important: It can only transfer to a district where the case could have been filed
    • This means the transferee must be a proper venue and have PJ over D
Transfer Statutes
  1. If the original district is proper venue, the court can order a transfer based on convenience of parties and witnesses and in the interest of justice
    • Never a right to transfer, always discretionary
    • Because transfer overrides P's choice of forum, the burden is on the person seeking transfer
    • When deciding whether to transfer a case, the courts look to public and private factors showing that the transferee is the "center of gravity"
      • Public: Things like what law applies, what community should be burdened with jury, the dire to keep a local controversy in a local court
      • Private: Convenience; where the evidence and witnesses are
    • When you transfer to another federal district court, original choice of law rules transfer too
    • If a contract has a valid forum selection clause, the case will be litigated in that forum and the court will use the choice of law rules of the state in which it sits
    • Exception: Under this transfer statute, the court can transfer to any district (even an improper venue) if all parties consent and the court finds cause for the transfer
      • Unlikely that P will consent
  2. If the original district is an improper venue, the court may transfer in the interest of just OR dismiss
    • Usually the court will transfer if possible, when it does the transferee applies its own choice of law rules, NOT the choice of law rules of the transferor district
Forum Non Conveniens (FNC)
  • Like transfer, there is another court that is the center of gravity, that makes more sense than the present court
  • But here the court does not transfer, it dismisses or stays the case
    • To stay means to hold in abeyance; nothing happens in the case
    • Whether it dismisses or stays the idea is that P will sue in another court
  • The court dismisses or stays because the more convenient court is in a different judicial system (foreign country), so transfer is impossible
  • This decision is based on the same private and public factors as transfer; requires a strong showing since result is stay or dismissal
    • FNC dismissal is never granted if P is resident of the present forum
    • The other court must be available and "adequate"
    • A court is adequate if P will get her day in court
Learning About the Case
  1. Service of Process
  2. Pleadings
  3. Discovery
Service of Process
  • Basic Idea: D is entitled to notice that she has been sued; Usually this consists of (1) a summons (formal court notice of suit and time for response) and (2) a copy of the complaint
    • Together these two documents are called service of process
    • You get the summons by presenting it to the clerk of court for signature and seal
  • Any party who is at least 18 can serve process
  • The process server doesn't have to be appointed by a court
  • If D is to be served in the US, service takes place within 90 days after filing the complaint
How Process is Served
  1. On an Individual in the US
  2. On a Business or Organization in the US
  3. On a minor or Incompetent person in the US
  4. Service in a Foreign Country
Service on Individual in the US
  1. Personal Service: Papers are given to D personally anywhere
  2. Substituted Service: Process is left with D's butler at D's summer house OK if:
    1. It is D's usual abode, and
    2. Serve summons on person of suitable age and discretion who resides there
      • D does not have to reside there every day of the year for it to qualify as his "usual abode"
      • The person on whom service is made does not have to be related to D
  3. Service on D's Agent: Process can be delivered to D's agent; OK if receiving service is in scope of agency
    • No preference on what type of service is used in federal court
  4. State Law Methods: Can use methods for serving process that are permitted by state law of the state where the federal court sits or where service is made
    • Ex: Service by Mail
Service on a Business or Organization in the US
  1. Office Manager or General Agent: Deliver a copy of the summons and complaint to such a person
  2. State Law Methods: Can use methods for serving process permitted by state law of the state where the federal court sits or where service is made
Service on a Minor or Incompetent Person in the US
  • Use any method permitted by state law
  • Use the law of the state where the federal court sits
Service in a Foreign Country
  • May use method allowed by international agreement, or if there is no such agreement on point, options:
    • As directed by the American court
    • If reasonably calculated to give notice:
      1. Method allowed by foreign country's law,
      2. Method directed by foreign official in response to a letter of request (letter rogatory) from the American court,
      3. Personal service in the foreign country (unless prohibited by its law), or
      4. Mail sent by the US court clerk, requiring signed receipt (unless prohibited by the foreign country's law)
Waiver of Formal Service of Process
  • Mail to D a notice and request to waive formal service, including a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form
    • If D executes and mails waiver form to P within 30 days (60 days if D outside US), D waives formal service of process
    • Can be used for both individuals and entities
  • If D waives formal service of process, he does not waive a defense for lack of PJ
  • When D signs and mails the waiver form back to P, P files the waiver in court and it becomes effective
  • If D fails to return the waiver form without good cause D must pay the cost of service
Proving Service
  • Unless service is waived, the person who served process files a report with the court detailing how service was made
    • If the service was by a civilian, the report is by affidavit (sworn statement, under oath)
  • If the process server fails to file this report, the service is still valid
Geographic Reach of Service
  • Process may be served within the state in which the federal court sits
  • It may be served outside the state if state law allows
  • That is why the assessment of whether we have PJ is the same for federal and state courts
Immunity from Service
  • D is immune from service if he is present in a state for the sole purpose to appear as a party, witness, or attorney in a different case in that state
Service of Other Documents
  • Other documents (e.g., answer, other pleadings, motions, discovery) get served, but we don't need a summons or to do it so formally
  • We serve these documents by delivering or mailing the document to the party's attorney (or to pro se party)
  • These documents can be served by email if the party agrees
  • If we mail interrogatories to the other party, service is deemed complete when they are mailed; the other party has 30 days to respond but has an extra 3 days to do so because they were mailed
  1. Complaint
  2. Defendant's Response
  3. Counterclaim
  4. Crossclaim
  5. Additional Claims
  6. Amended Pleadings
  7. Supplemental Pleadings
  8. Rule 11
  • Filing the complaint commences the action
  • Requirements:
    1. Statement of grounds of SMJ;
    2. Short and plain statement of the claim, showing entitled to relief;
    3. Demand for relief sought (e.g., damages, injunction, declaratory judgment)
  • P doesn't have to allege grounds of PJ or venue
  • In stating the claim, federal courts traditionally use "notice pleading," which means you only need enough detail to put the other side on notice
    • For SCOTUS you must plead facts supporting a plausible claim; requires more detail
    • To determine plausibility, judge uses own experience and common sense
    • D can challenge the complaint by making a 12(b)(6) Motion
  • Three matters that must be pleaded with even more detail - particularity or specificity:
    1. Fraud
    2. Mistake
    3. Special Damages
Defendant's Response
  • Rule 12 requires D to respond in one of Two Ways:
    1. By Motion, or
    2. By Answer
  • Motions (Rule 12): Motions are not pleadings; they are requests for a court order
    • Issues of Form:
      1. 12(e) motion for more definite statement - so vague D can't respond;
      2. 12(f) motion to strike - asks court to remove immaterial, impertinent, or scandalous things from pleadings; and party may move for this
    • Rule 12(b) Defenses:
      1. Lack of SMJ;
      2. Lack of PJ;
      3. Improper Venue;
      4. Improper Process (problem with papers);
      5. Improper Service of Process;
      6. Failure to State a Claim;
      7. Failure to Join a Indispensable Party
        • These defenses can be put either in a motion to dismiss or the answer
        • #2,3,4, and 5 are waivable
    • "Waivable" Defenses must be put in the first Rule 12 response (motion or answer) or else they're waived
    • If the case was removed from state court and it turns out that the federal court lacked SMJ, the federal court will remand the case to state court
  • The Answer: It is a pleading, D does two things in the answer:
    1. Respond to allegation of complaint:
      1. Admit;
      2. Deny;
      3. State that you lack sufficient info to admit or deny
        • #3 has effect of denial, but can't use if the answer is in your control - you have a duty to investigate things in your control
        • If P alleges something and D knows the answer is in D's records, D must look it up, can't say he doesn't know
        • D is never deemed to admit damages
    2. Raise Affirmative Defenses: These inject a new fact into the case which will allow D to win
      • Classic Affirmative Defenses are SoL, SoF, res judicata, self-defense
      • If D fails to assert an affirmative defense in the answer, he may be deemed to have waived it
      • If it's waived, D cannot put on evidence regarding the affirmative defense
  • A claim against an opposing party
    • Once someone asserts a claim against you, you are opposing parties
    • Your claim back against that person is a counterclaim
    • Usually its a claim by D against P
    • Counterclaim is part of D's answer
  • After D serves a counterclaim against P, P must respond within 21 days after service
  • Two Types of Counterclaims:
    1. Compulsory
      • Arises from the same T/O as P's claim
      • Unless you have already filed the claim in another case, you must file this in the pending case or the claim is waived
        • This is the only compulsory counterclaim
    2. Permissive
      • Does not arise from same T/O as P's claim
      • Permissive means you are not required to file it in this case
      • You may sue on it in a separate case
  • Must asses whether the counterclaim invokes diversity or FQ jurisdiction, if so OK in federal court, if not try supplemental jurisdiction
  • A claim against a co-party
  • It must arise from the same T/O as underlying action
  • Not compulsory; may assert it here or sue separately
  • *Look at examples on pg. 33-34 of Handout*
Additional Claims
  • Once you file a counterclaim or crossclaim (or any claim) you can join an additional claim to it - even if that claim has nothing to do with the others
  • The additional claim must invoke federal SMJ
  • If neither diversity or FQ is met, try SJ
Amended Pleadings
  • Four Fact Patterns:
    1. Right to Amend
    2. If no Right to Amend
    3. Variance
    4. Amendment after the SoL has run ("relation back")
Right to Amend
  • P has a right to amend once within 21 days after D serves her first Rule 12 Response
  • D has right to amend once within 21 days of serving his answer
  • If D's first response is an answer in which he forgot to raise "waivable defenses" and forgot to raise an affirmative defense, if he has a right to amend his answer he can now assert the waivable defenses and affirmative defense
If There's No Right to Amend
  • If there is no right to amend seek leave of court
  • It will be granted if "justice so requires"
  • Factors Courts Look At:
    1. Delay
    2. Prejudice
    3. Futility of Amendment
  • Where the evidence at trial does not match what was pleaded
  • At or after trial, P can move to amend the complaint to conform to the evidence if D doesn't object
    • This means we amend to show the claim
  • This ensures that the pleadings match what was actually tried
  • If D does object, evidence of claim is inadmissible because it is at "variance with the pleadings"
  • *Look at pg. 35 of Handout*
Amendment After the SoL has Run ("Relation Back")
  1. To Join a Claim not Asserted Originally
    • Rule: Amended Pleadings "relate back" if they concern the same conduct, transaction, or occurrence of the original pleading
    • Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid SoL problem
  2. To Change a D After the Statute has Run
    • This will relate back if:
      1. It concerns same conduct, transaction, or occurrence as the original;
      2. The new party know of this case within 90 days of its filing; and
      3. She also knew that, but for a mistake, she would have been named originally
    • This applies when P sued wrong D first, but the right D knew about it
Supplemental Pleadings
  • Set forth things that happened after the pleading was filed
  • Amended pleadings are about things that happened before the pleading was filed but were not asserted until later
  • There is never a right to file a supplemental pleading, you must move for it and it is discretionary with the court
  • *Look at pg. 36 of Handout for examples*
Rule 11
  • Applies to all documents except discovery (which are treated by another rule)
  • When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
    1. The paper is not for an improper purpose, and
    2. The legal contentions are warranted by law (or nonfrivolous argument for law change), and
    3. The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation)
  • In addition, you make this certification every time you "present" a position to the court continuing certification
  • If there is a violation, Rule 11 sanctions may be ordered against the party, attorney, or firm responsible for the violation; generally firms are jointly liable for their attorneys
  • Before imposing a sanction on you, the court must give you a chance to be heard
  • The purpose of Rule 11 sanctions is to deter not to punish
  • Often courts impose non-monetary sanctions; if monetary sanctions are imposed they are often paid to the court not the other party
  • If the other party violates Rule 11 you cannot file a motion for sanctions immediately
    • You serve the motion on other parties but cannot file it
    • The party in violation has a safe harbor of 21 days in which to fix the problems and avoid sanctions
    • If she does not do so, then motion can be filed
  • The court can raise Rule 11 problems on its own (sua sponte)
    • To do so, court usually issues an "order to show cause" (OSC) why sanctions shouldn't be imposed
    • Court must give a chance to be heard before imposing a sanction on anyone
  1. Required Disclosures
  2. Discovery Tools
  3. Scope of Discovery
  4. Enforcement of Discovery Rules
Required Disclosures
  • Materials that must be produced even though no one asks for them
  1. Initial Disclosures
  2. Expert Witnesses (EW)
  3. Pretrial Required Disclosure
Initial Disclosures
  • Unless a court order or stipulation says otherwise, within 14 days of the Rule 26(f) conference, each party must disclose:
    1. Identities of Persons who have discoverable info that the disclosing party may use to support claims or defenses
      • Give name, phone number, address if known, and subject on which they have info
      • If a party fails to identify someone she was required to identify, she cannot use that witness in the case unless failure to identify was substantially justifiable or harmless
    2. Documents and Things that you may use to support your claims or defenses; you may produce copies or a description of these things
      • Info to be disclosed includes photos, recordings, and electronically stored info (ESI)
      • Info to be disclosed includes tangible things
      • If a party fails to disclose something they were required to disclose, you cannot use that material in the case unless failure to identify was substantially justifiable or harmless
      • Only required to disclose documents if they are in your control
    3. Computation of Monetary Relief and documents/ESI supporting it
      • Anyone claiming monetary relief must provide "computation," supported by documents or ESI of amount sought
    4. Insurance Coverage
      • D must disclose any insurance that might cover all or part of the judgment in this case, even though existence of such insurance will probably not be admissible at trial
Expert Witnesses (EW)
  • Later in the case, at a time directed by the court, each party must identify expert witnesses "who may be used at trial"
  • If a party hires an expert to help prepare his case, but does not intend to call the witness to the stand, he is a consulting expert not a EW
    • Facts held and opinions by consulting experts are generally only discoverable in "exceptional circumstances"
  • EW "who may be used at trial," each party must generally disclose the identity and written report of the EW
  • The written report must include:
    1. Opinions EW will express,
    2. Bases for the opinions,
    3. Facts used to form the opinions,
    4. EW's qualifications, and
    5. How much the EW is being paid
  • Thereafter a party may take the deposition of an EW
    • That party should subpoena EW to compel his attendance
    • That party must pay the EW a reasonable fee per hour as set by the court
  • Earlier drafts of EW report and communications between the lawyer and EW are work product
  • An EW is someone who, because of special skill or training, may give opinion testimony
    • He is hired to render an opinion in this case
    • There may be other people with expertise who testify but are not EW under this rule (see doctor example on pg. 40 of Handout)
  • If a party fails to identify an EW and provide the required info, they cannot use the EW in the case unless failure was justified or harmless
Pre-Trial Required Disclosure
  • No later than 30 days before trial, must give detailed info about trial evidence
    • This includes identity of witnesses to testify live or by deposition, ESI, things to be introduced at trial
Discovery Tools (by which parties request info)
  • Assuming no court order or stipulation provides otherwise, a party can first request discovery from other parties After the Rule 26(f) Conference
  • Minor Exception:
    • You can serve requests to produce earlier - 21 days after service of process
    • They are treated as thought served at the      Rule 26(f) Conference
  • One Huge Issue in Discovery: Which tools can be used to get information from non-parties?
  • Discovery Tools:
    1. Depositions
    2. Interrogatories
    3. Requests to Produce
    4. Medical Exam (Physical or Mental)
    5. Request for Admission
    6. Substantive Answers to Discovery
    7. Duty to Supplement
  • A person gives live testimony in response to questions by counsel or pro se parties
    • Questions are usually oral but can be written (read by the court reporter if written)
    • Deponent Testifies Under Oath
    • The Deposition is recorded by sound or video or stenographically and a transcript can be made
  • A deponent is not required to review all relevant files and notes before being deposed, can testify from present recollection
  • You can "notice" the deposition of a party or nonparty, but the nonparty should be subpoenaed to compel attendance
    • You don't need to subpoena a party, just serve "notice of deposition"
  • A Subpoena "Duces Tecum" requires the deponent to bring requested materials with her
  • Unless a nonparty agrees, the farthest she can be required to travel to have her deposition taken is 100 miles from where she resides or works
  • *Look at Car Co. example on pg. 41 of Handout)
Limits on Depositions
  • You cannot take more than 10 depositions or depose the same person twice without court approval or stipulation
  • The deposition cannot exceed one day of 7 hours unless court orders or parties stipulate
Use of Deposition at Trial
  • All are subject to Rules of Evidence:
    1. Impeach the deponent;
    2. Any purpose if the deponent is an adverse party;
    3. Any purpose if the deponent, regardless of whether a party, is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence
  • Written questions, to be answered in writing under oath
  • You can only send interrogatories to parties, not nonparties
  • A party has 30 days to respond with her answers or objections to the interrogatories
    • Extra 3 days if served by mail
  • Must answer interrogatories from info readily available to you
  • The maximum number you can send to a party without a court order or stipulation for more is 25
    • Includes sub-parts, no more than 25 actual questions
  • If the answers to the interrogatories can be found in business records and the burden of finding them would be about the same for either party, the responding party can allow the requesting party access to the records
  • Can't use your own answers to interrogatories at trial
    • Others are OK per rules of evidence
Requests to Produce
  • These requests make someone make available for review and copying documents or things, including ESI, or to permit you to enter designated property to inspect, measure, etc.
    • Person must respond in writing within 30 days of service, stating that the material will be produced or asserting objections
  • You can make these requests of parties only
    • You can get the same info from nonparties by subpoena
  • The requesting party specifies the form that ESI is to be produced in
    • Responding party can object
Medical Exam (Physical or Mental)
  • You must get a court order for a medical exam
    • Only one of discovery tools where you need one
  • To get the court order you must show:
    1. That the person's health is in actual controversy and "good cause"
  • A party or someone in the party's custody or legal control (e.g., parent is in control of child) can be ordered to undergo a medical exam
  • The party seeking the order chooses the licensed person to perform this exam
  • The party on whom the medical exam was performed can get a copy of it by requesting it
    • If report is requested and obtained, he must, on request, produce to the other party all medical reports by his own doctor's and give it to the party who requested the exam
    • He also waives any doctor/patient privilege he may have had with his doctor regarding that condition
Request for Admission
  • A written request that someone admits things
  • May be served on parties only, never nonparties
  • If P sends D a request of admission, if D fails to deny specifically (or object to the request) in writing within 30 days, he is deemed to admit it
    • The part can respond by saying they don't know the answer if they state that they made reasonable inquiry and cannot find enough to admit or deny
  • Often used to authenticate documents - "admit that this is a contract"
Substantive Answers to Discovery
  • Parties sign substantive answers to discovery under oath
  • Rule 11 does not apply to discovery documents
  • By another Rule, every discovery request and response is signed by counsel certifying:
    1. It is warranted,
    2. It is not interposed for an improper purpose, and
    3. It is not unduly burdensome
Duty to Supplement
  • If after you respond to discovery circumstances in the real world change, and in light of these new circumstances your response to required discovery, interrogatory, request for production, or request for admission is now inconsistent:
    • You must supplement your response even though no one asks you to
Scope of Discovery
  1. Standard
  2. Privilege
  3. Work Product
  4. Asserting Privilege or Work Product
Scope of Discovery Standard
  • You can discover:
    1. Anything relevant to a claim or defense, and
    2. Proportional to the needs of the case
  • Standard for an item to be discoverable is broader than standard to be admissible at trial
  • Remember: Something harmful to you need not be disclosed in required disclosures, but may be discoverable using the regular discovery tools
  • D's net worth is not discoverable when P is seeking compensatory damages; irrelevant
  • D's net worth is discoverable when P is seeking punitive damages; net worth is relevant to punishing D
  • *Look at Examples on pg. 44-45 of Handout*
  • You can object to discovery on the basis of evidentiary privilege, e.g., confidential communications between attorney and client
Work Product
  • Also called "trial preparation materials"
  • Materials prepared in anticipation of litigation
  • Generally protected from discovery
  • Work product doesn't have to be generated by a lawyer
    • Can be generated by the party or any representative of the party
  • "Qualified Work Product":
    • Some of a work product is discoverable if party requesting discovery shows:
      1. Substantial Need, and
      2. It is not otherwise available
  • "Absolute Work Product":
    • Cannot be discovered
    • Items are absolutely protected if they are:
      1. Mental impressions,
      2. Opinions,
      3. Conclusions, and
      4. Legal Theories
        • Usually referred to as "opinion work product"
  • The identity of the witnesses is not work product
    • The identity of people with discoverable info is discoverable
  • A party's own statement is not work product
    • A party has a right to request his own statement
  • *See Examples on pg. 45-47 in Handout*
Asserting Privileges or Work Product
  • If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail
    • You do this in a document that lists the materials protected by:
      1. Date,
      2. Author,
      3. Recipient, and
      4. Privilege or protection claim
    • It must be in enough detail to allow the judge to determine whether the material is protected
    • This document is called a Privilege Log
  • If you inadvertently produce privileged or protected material, you should notify the other party promptly
    • The other party then must:
      1. Return,
      2. Sequester, or
      3. Destroy it,
      4. Pending decision by court about whether there as been a waiver
Enforcement of Discovery Rules
  • Three Ways courts get involved in discovery disputes:
    1. Protective Order
    2. Responding Party Responds, but not Fully
    3. No Response to Discovery Request
Protective Orders
  • If the responding party thinks a discovery request subjects it to annoyance, embarrassment, undue burden, or expense or the request is not cumulative to her case she can move for a protected order (PO)
    • She must certify in good faith to get the info without court involvement; that she asked the other side to "meet and confer"
    • If the court agrees it can:
      1. Deny Discovery, or
      2. Limit it, or
      3. Permit it on specified terms
        • Example on pg 48 of Handout
Responding Party Responds to Discovery, but not Fully
  • The responding party does respond, but fails to answer all questions because he objects to them (or some of them)
  • The requesting party may make a Motion to Compel answers, and the court will decide whether the objections were legitimate
No Response to Discovery Request
  • The responding party fails completely to:
    1. Attend her Deposition,
    2. Respond to Interrogatories, or
    3. Respond to Requests for Production
Sanctions Against a Party (Discovery)
  • The party seeking sanctions generally must certify that she tried in good faith to get the info without court involvement - to "meet and confer"
  1. Less Than Full Response:
    • Two Steps:
      1. Move for an order compelling the party to answer the unanswered questions, plus costs (including attorney's fees) of bringing motion
      2. IF the party violates the order compelling him to answer, "merits sanctions" plus costs (and attorney's fees regarding the motion) and could be held in contempt for violating a court order
        • Except no contempt for refusal to submit medical exam
  2. No Response:
    • One Step:
      1. "Merits" sanctions plus costs (and attorney's fees for the motion)
        • No need to get an order compelling answers
        • Go directly to "merits" sanctions
Merits Sanctions
  • Choices Available to Judge:
    1. Establishment order
      • Establishes facts as true
    2. Strike pleadings of the disobedient party
      • As to issues regarding the discovery
    3. Disallow evidence from the disobedient party
      • As to issues regarding the discovery
    4. Dismiss P's case
      • If bad faith shown
    5. Enter Default Judgment against D
      • If bad faith shown
Litigation Hold
  • When litigation is reasonably anticipated, parties must preserve discoverable information
  • If ESI is truly lost (cannot be recovered or restored), and was lost because party in control failed to take reasonable steps to preserve it, court may "order measures" to cure the harm caused to the other party
  • A court can enter an "Adverse Inference" Order only if that party lost the info with the intent to deprive you of it
  • Adverse Inference Order:
    • Court tells the jury that it must presume that the lost info would be unfavorable to the party that lost the ESI
Multiparty Litigation
  1. Proper Ps and Ds
  2. Necessary and Indispensable Parties
  3. Impleader
  4. Intervention
  5. Class Action
Proper Plaintiffs and Defendants
  • P is planning the case and wants to have multiple Ps or multiple Ds (giggity)
    • If three people are injured when riding in a cab that crashes, they can sue together as co-plaintiffs because their claims:
      1. Arise from the same T/O, AND
      2. Raise at least one common question
    • Similarly, they (as a group) or any one of them can sue the cab driver and cab company because the claims against the two:
      1. Arise from the same T/O, and
      2. Raise at least one common question
    • With these parties, assess whether case invokes diversity or FQ
Necessary and Indispensable Parties
  • Case has been filed, now court might force some nonparty ("absentee") to join in the case
    • Court forces a nonparty into the case because the nonparty is necessary or required
Who is Necessary
  • An Absentee (A) who meets any of these 3 Tests:
    1. Without A, court cannot accord complete relief among existing parties; or
      • Worried about multiple suits
    2. A's interest may be harmed if he is not joined; or
      • Practical Harm
      • Most likely on Bar
    3. A claims an interest that subjects a party  (usually D) to a risk of multiple obligations
  • Joint tortfeasors are never necessary
Can Absentee (A) be Joined
  • Must be necessary
  • Now see if joinder is feasible
  • Joinder is feasible if:
    1. There is PJ over you, and
    2. Joining you will not fuck up diversity jurisdiction
      • Court determines whether you would come in as P or D to see if bringing you in will fuck up diversity
  • If Joinder is feasible, the court orders A's Joinder
If Absentee (A) Cannot be Joined
  • If A cannot be joined (e.g., court lacks PJ over A), court must do One of Two Things:
    1. Proceed without A, or
    2. Dismiss the entire case
  • To make this decision the court looks at These Factors:
    1. Is there an alternative forum available?
      • Maybe some state court
    2. What is the actual likelihood of harm to A?
    3. Can the court shape relief to avoid that harm to A?
  • If the court decides to dismiss rather than proceed without A, we call A indispensable
    • Remember this is a Rule 12(b) Defense: Dismiss for failure to join an indispensable party
  • **Hint:**
    1. The two joinder claims starting with "C" (counterclaim and crossclaim) are claims existing between existing parties
    2. Claims starting with "I" involve joining someone new to the case
      • These claims starting with "I" are covered in the following cards
  • A defending party (usually D) is bringing in someone new
    • The new party is the third-party defendant (TPD)
    • May be called third-party practice on Bar
  • An impleader claim is never compulsory
    • Remember: Only compulsory claim is compulsory counterclaim
  • D can only do this to shift to the TPD the liability that D will owe to P
    • So if D is found liable to P, he will try to get TPD to pay all or part of his own liability
  • Easy Way to Spot It:
    • Almost always a claim for Indemnity or Contribution
    • Those claims shift the liability D owes P over to TPD
    • Indemnity shifts completely
      • TPD must cover whole claim
    • Contribution shifts it pro-rata
      • TPD must cover a pro-rata portion of claim
  • *See pg. 51-53 in Handout for Impleader Examples*
Steps for Impleading the TPD in the Pending Case
  1. D files a third-party complaint naming the TPD; and
  2. Serve process on the TPD
    • Must have PJ over TPD
  • There is a right to implead within 14 days of serving answer, after that need court permission
  • After TPD is joined, P can assert a claim against TPD if the claim arises from the same T/O as the underlying case
  • After TPD is joined, TPD can assert claim against P if the claim arises from the same T/O as the underlying case
  • SMJ:
    • Remember to assert each claim separately for SMJ
    • Try diversity and FQ, if neither works try SJ
  • It doesn't matter if P and TPD are citizens of the same state
    • P is not a party to this claim so P's citizenship is irrelevant to this claim
  1. Nonparty brings herself into the case
    • She chooses to come in either as a P to assert a claim, or a D to to defend a claim
    • Court may realign her if it thinks she came in on the "wrong side"
    • Application to intervene must be "timely"
  2. Intervention of Right:
    • A's interest may be harmed if she is not joined adequately and represented now
    • Same as Test 2 for necessary parties
    • For the same reason you were "necessary" in hypo on pg. 50, you would also have a right to intervene
  3. Permissive Intervention:
    • A's claim or defense and the pending case have at least one common question
    • Discretionary with court
    • Usually OK unless intervention will cause delay or prejudice to someone
  4. SMJ:
    • Assess whether claim by/against intervenor invokes diversity or FQ
    • If neither applies try SJ
    • A claim by an intervenor P is a claim by a P, so the limitation on SJ may apply
Class Action
  • Representative(s) (Rep) sues on behalf of group
  1. Initial Requirements
  2. Type of Class Action
  3. Rep's Complaint Will Say "Class Action"
  4. Notification
  5. Who is Bound by Judgment in a Certified Class Action
  6. Parties Rights to Settle or Dismiss
  7. SMJ
  8. Class Action Fairness Act (CAFA)
Initial Requirements
  • Must Demonstrate All Four of These:
    1. Numerosity:
      • Too many class members for practicable joinder
      • No "magic number"
    2. Commonality:
      • Some issue in common with all class members
      • Resolution of that issue will generate answers for everybody in one stroke
    3. Typicality:
      • Rep's claims are typical of class
    4. Representative Adequate:
      • Class Rep will fairly and adequately represent class
Type of Class Action
  • Must Satisfy ONE of These:
  1. Type 1:
    • Prejudice: Class treatment necessary to avoid harm (prejudice) either to class members or to the non-class party
    • *Rarely Tested, example pg. 54 of Handout*
  2. Type 2:
    • Class seeks an injunction or declaratory judgment because D treated class members alike
    • Example: Employment Discrimination
  3. Type 3:
    • Damages:
      1. Common questions predominate over individual questions; AND
      2. Class Action is the superior method to handle the dispute
        • Example: A mass tort
        • *Hypo on pg. 54 of Handout*
Reps Complaint Will Say "Class Action"
  • Rep's complaint will say "class action," but a case is not a class action until the court grants a Motion to Satisfy the class action
  • When it certifies the class action, the Court Must:
    1. "Define the class and the class claims, issues, or defenses"
    2. Appoint Class Counsel
      • Class counsel must fairly and adequately represent the interests of the class
      • Applicant must be best able to represent the class
  • If you lose on the class certification motion, you may ask the court of appeals review that decision
    • Discretionary with court (see pg. 70 of Handout)
  • In the Type 3 class, the court will notify class members that they are a class
    • Means individual notice (usually by mail) to all reasonably identifiable members
    • Notice tells the various things including:
      1. They can opt out;
      2. They'll be bound if they don't; and
      3. They can enter a separate appearance through counsel
  • Notice is not required in Type 1 or 2 class action
  • The Rep pays to give notice
Bound by Judgment in Certified Class Action
  • All members except those who opt out of a Type 3 class action
    • No right to opt out of Type 1 or 3
Parties Rights to Settle or Dismiss
  • Parties can only settle or dismiss a certified class action with court approval
  • In All 3 Types the court gives notice to class members to get their feedback on whether the case should be settled or dismissed
    • Decision is up to court
    • If a Type 3 Class the court might give the members a second chance to opt out
Subject Matter Jurisdiction
  • If a Rep sues on behalf of a class to enforce a federal right, class action can proceed in federal court
    • Invokes FQ
  • For diversity purposes, only consider citizenship of the Rep
    • As long as the Rep is diverse from all Ds and the Rep's claim exceeds 75K, the class action will invoke diversity
  • *Examples on pg. 55 of Handout*
Class Action Fairness Act (CAFA)
  • CAFA grants SMJ separate from diversity
    • Lets a federal court hear a class action of at least 100 members if:
      1. Any class member (not just Rep) is of diverse citizenship from any D, and
      2. The aggregated claims claims of the class exceeds $5M
    • Makes it easier for interstate class actions to go to federal court
Adjudicating the Dispute
  • **Rarely Tested on Essays, Might be on MBE**
  1. Preliminary Injunctive Relief
  2. Pretrial Adjudication
  3. Conferences and Meetings
  4. Trial, Judgment, and Post-Trial Motions
Preliminary Injunctive Relief
  1. Basic Idea
  2. Temporary Restraining Order (TRO)
  3. Preliminary Injunction
Preliminary Injunctive Relief Basic Idea
  • P is planning to file suit or has sued
  • P is worried that before suit can go to trial, D may do (or fail to do) something that will prejudice P's case
  • P wants Injunctive Relief - a court order that D either:
    1. Do something, or
    2. Refrain from doing something
  • Court is nervous about doing this because the merits of the underlying dispute have not been decided
  • An order that maintains the status quo until trial is a Preliminary Injunction (PI)
  • Before getting a PI, to maintain the status quo until the hearing on the PI you may seek a Temporary Restraining Order (TRO)
Temporary Restraining Order (TRO)
  • Whenever a court does something without giving notice to the other party, it may be called Ex Parte
  • The court issues a TRO ex parte ONLY IF:
    1. Applicant files a paper under oath clearly showing that if the TRO is not issued he will "suffer immediate and irreparable harm" if he must wait until the other side is heard
    2. Applicant's lawyer certifies in writing her efforts to give oral or written notice to D or D's lawyer (or why such notice should be required in this case)
  • If court issues a TRO, Applicant must post bond (security) to cover the other side's costs and damages caused if it turns out the restraint is wrongful
  • TRO must:
    1. State its terms specifically,
    2. Describe in detail what D must do (or not do),
    3. State why it was issued, and
    4. Why the threatened injury to P was irreparable
  • If court issues TRO, order must be served on D ASAP
  • If court issues TRO, D can move to dissolve or modify the TRO within 2 days of notice
  • TRO effective for no more than 14 days
    • Court can state lesser time
    • If Applicant shows good cause before expiration, it can be extended for up to another 14 days
  • So TRO cannot extend beyond 28 days
Preliminary Injunction (PI)
  • Maintains status quo until court can adjudicate underlying claim on the merits
  • PI can never be granted ex parte
  • The burden is on the Applicant to show:
    1. He is likely to suffer irreparable harm if injunction is not issued;
    2. He is likely to win on the merits of underlying case;
    3. The balance of hardship favors him (threatened harm to Applicant outweighs harm to other party if injunction is issued); and
    4. The injunction is in public interest
  • Never a right to an injunction, always discretionary
  • If court grants PI, Applicant must post bond
  • PI must:
    1. State its terms specifically,
    2. Describe in detail what D must refrain from doing,
    3. State why it was issued
  • Court must make specific findings of fact and separate conclusions of law in granting or denying PI
  • Court may consolidate the hearing on the motion for PI with trial on underlying case
    • May advance trial on the calendar to do so
  • An order granting or denying a PI is automatically appealable even though it is not a final judgment
Pretrial Adjudication
  1. Voluntary Dismissal
  2. Default and Default Judgment
  3. Motion to Dismiss for Failure to State a Claim
  4. Motion for Summary Judgment
Voluntary Dismissal
  • P wants to withdraw the case
    • P can make a motion for voluntary dismissal anytime
    • Court has discretion to grant
  • P has a right to take a voluntary dismissal by filing a "notice of dismissal"
    • But she must do so before D serves an answer or motion for Summary Judgment (SJ)
  • If P files a timely notice of dismissal, the case is dismissed without prejudice
    • P can refile the case
    • P can only do this once
    • If P dismisses again, it is dismissed with prejudice, can't re-file the case
Default and Default Judgment (DJ)
  • D doesn't respond to the complaint in time
    • 21 Days after being served with process
    • 60 Days from mailing of waiver if you waived service
  1. Default
  2. How to get Default Judgment
  3. Motions to Set Aside
  • A notation by the court clerk on the docket sheet of the case
  • P must move for entry of default
    • P must demonstrate D failed to respond on time
    • Until default is entered, D can respond by motion or answer even beyond 21 days
  • The effect of entry of default:
    • it cuts off the Ds right to respond
  • Entry of default doesn't entitle P to recover
    • P needs to get a Default Judgment (DJ) before she can recover from D
How to Get a Default Judgment
  • The clerk of court can enter judgment if:
    1. D made no response at all;
    2. The claim itself is for a sum certain in money;
    3. Claimant gives Affidavit (sworn statement) of the sum owed; and
    4. D is not a minor or incompetent
  • If any of those is not true, P applies to the court for DJ
    • Go to judge
  • Judge will hold a hearing and has discretion to enter judgment
    • D gets notice of hearing only if he appeared in case
  • Can't recover more than your pleaded on a DJ
  • Can't get a different type of relief than what you pleaded on a DJ
    • Example: P sues for damages, can't get injunction on DJ
  • If the case goes to trial P can recover more than she put in her complaint AND get a different kind of relief
Motions to Set Aside
  • D may move to have the court set aside a default of DJ by:
    1. Showing good cause (like excusable neglect), and
    2. A viable defense on the merits
Motion to Dismiss for Failure to State a Claim
  • FRCP 12(b)(6)
  • About whether case belongs in the litigation stream at all
  • If P's complaint fails to state a claim, the case can be dismissed
  • In ruling on this motion, court ignores P's legal conclusions
    • Looks only at P's allegations of fact in the complaint
    • Asks if these facts are true and do they state a plausible claim
  • Judge uses experience and common sense to see if facts state plausible claim
  • Court doesn't look at evidence when ruling on the motion, looks only at face of complaint
  • The same motion is called Motion for Judgment on the Pleadings if made after D has answered
Motion for Summary Judgment
  • FRCP 56
  • P stated a claim, so we're in litigation stream
    • Might not need a trial
    • SJ weeds out cases that don't need trial
    • Only need trial to resolve disputes of material fact
  • Party moving for SJ must show:
    1. There is no genuine issue of material fact, and
    2. She is entitled to judgment as a matter of law
  • If standard is met, court has discretion to enter or deny SJ
  • Any party can move for SJ no later than 30 days after close of discovery
  • Partial SJ:
    • Motion for partial judgment
    • Example: judgment as to liability, but go to trial on damages
  • Court can look at evidence in SJ
    • Evidence viewed in light most favorable to nonmoving party
  • Parties proffer the evidence, usually:
    1. Affidavits, or
    2. Declarations, or
    3. Deposition Testimony, or
    4. Interrogatory Aswers
      • These are considered evidence b/c they are under oath
  • *See fact pattern and examples on pg. 61 of Handout*
Conferences and Meetings
  1. Rule 26(f) Conference
  2. Scheduling Order
  3. Pretrial Conferences
Rule 26(f) Conferences
  • Unless court order says otherwise, at least 21 days before scheduling order, parties "meet and confer"
    • Must present detailed discovery plan to court
  • Discovery plan must be presented to the court no later than 14 days after the Rule 26(f) Conference
  • Plan must include:
    1. Views and Proposals on Timing,
    2. Issues about Discovery of ESI
Scheduling Order
  • Unless local rule or court order says otherwise, court enters an order scheduling cut-off for:
    1. Joinder,
    2. Amendment,
    3. Motions,
    4. Completion of Discovery, etc.
  • Roadmap for how litigation proceeds up to trial
Pretrial Conferences
  • Court may hold Pretrial Conferences (PC) to process case
  • Final PC determines issues to be tried and evidence to be proffered at trial
    • Recorded in Pretrial Conference Order
    • Supersedes Pleadings
    • Roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc.
Trial, Judgment, and Post-Trial Motions (PTM)
  1. Jury Trial
  2. Nonjury (Bench) Trial
  3. Motions at and After Trial
  4. Offer of Judgment
  5. Motion for Relief from Order or Judgment
Jury Trial
  • Jury determines facts and returns the verdict
    • Random: Motion in Limine is a Pretrial Motion to decide whether jury should hear certain evidence
  1. Right to Jury Trial in Federal Court
  2. Selection and Compositions of Jury
  3. Jury Instructions
  4. Types of Verdicts
  5. Entry of Judgment
  6. Juror Misconduct
Right to Jury Trial in Federal Court
  • 7th Amendment preserves right to jury in civil actions at law but not suits in equity
    • If case involves both, jury decides all facts underlying legal claim, but no equity claim
    • If a fact underlies both a legal and equity claim the jury decides it
    • Jury issues are tried first
  • 7th Amendment only applies in federal civil cases
  • Must demand jury in writing no later than 14 days after service of the last pleading raising jury triable issue
    • If you don't you waive right to jury
Selection and Composition of the Jury
  • In jury selection process (voir dire), each side might ask court to strike potential jurors
  • Two Kinds of Challenges:
    1. For Cause:
      • No limit on how many motions a party can make to strike for cause
    2. Peremptory
      • Don't need reason, just strike juror
      • Each side has 3
      • May only be used in a race and gender neutral manner
  • Minimum 6, maximum 12 jurors on civil jury in fed ct.
  • All jurors participate in verdict unless excused for good cause
  • Can't return a verdict with less than 6 jurors unless both parties agree otherwise
  • Unanimous vote required for verdict unless both parties agree otherwise
Jury Instructions
  • Jury decides facts, but is instructed on law by judge
  • Parties submit proposed jury instructions to judge
    • At close of all evidence
    • Or earlier if court says so
  • Before final argument and instruction, court informs parties of:
    1. What instructions will be given, and
    2. What proposed jury instructions it rejected
  • Parties must be allowed to make specific objections to instructions and rejections of all instructions
    • Before final argument and instruction
  • If objections not made before jury is charged, party cannot raise a problem with instructions on appeal
    • One Exception: If a party doesn't object timely, court can consider instruction if it contained plain error
Types of Verdicts
  • Judge determines what verdict form jury will use
  1. General: Says who wins and what relief is
  2. Special: Jury answers in writing specific written questions about facts in dispute
    • Doesn't tell us who wins or loses
    • Judge reaches legal conclusion based on facts found
  3. General Verdict w/ Special Interrogatories:
    • Jury gives a general verdict but must also answer specific questions submitted to it
    • Questions ensure that jury is more focused on important issues
Entry of Verdict
  1. If jury returns general verdict, clerk of court enters verdict
  2. If jury returns special verdict or general verdict w/ special interrogatories and answers are consistent w/ each other and w/ the verdict, judge approves the judgment and the court enters it
  3. In case involving general verdict w/ special interrogatories, if answers are consistent w/ each other but inconsistent w/ the verdict, court may enter appropriate judgment consistent w/ answers
    • Or can tell jury to reconsider or order new trial
    • If answers inconsistent and one or more is inconsistent w/ general verdict, no judgment entered
    • Court either instructs jury to reconsider or order new trial
Jury Misconduct
  • Court can set aside verdict and order new trial
  • Verdict may be impeached based upon external matters
    • If jurors were bribed or based verdict on their investigation of matters outside of court instead of evidence at trial, new trial can be ordered
    • Non-jurors can give first-hand evidence of such things
  • But: A juror cannot testify about things occurring or statements made during deliberation
    • Except to show "extraneous prejudicial info" or "outside influence"
    • New trial can't be ordered on basis of a juror's testimony about intrinsic measures
    • *See pg. 65 of Handout*
  • Verdict won't be set aside if misconduct was harmless
Nonjury (Bench) Trial (BT)
  1. When there is no jury (either 7th Amendment didn't apply or parties waived right to jury trial), judge determines facts at trial
    • Judge must state "findings of fact" on the record or in writing
  2. Judge must record conclusions of law stated separately from the findings of fact
  3. The judgment must also be entered
    • Judgment is very short, just telling who wins and the relief
Motions at and After Trial
  1. Motion for Judgment as Matter of Law (JMOL)
  2. Renewed Motion for Judgment as Matter of Law (RMJOL)
  3. Motion for a New Trial
  4. Remittitur and Additor
  5. Offer of Judgment
  6. Motion for Relief from Order or Judgment
Motion for Judgment as Matter of Law (JMOL)
  • Same as directed verdict, just new name
    • Applies in jury trial
    • If judge grants JMOL, won't go to jury
      • Judge grants motion and enters judgment
  • Motion is based upon evidence presented at trial
    • Judge grants JMOL instead of sending to jury b/c reasonable people could not disagree on result
  • Like SJ except comes up at trial instead of before
  • Court views evidence in light most favorable to non-moving party (just like SJ)
  • A party can move for JMOL after the other side has been heard at trial
    • D moves for JMOL after P presents evidence and rests
Renewed Motion for Judgment as a Matter of Law (RJMOL)
  • Same as JMOL but comes up after trial
  • May be granted b/c jury reached a conclusion that reasonable people could not have reached
  • If RJMOL is granted court enters judgment for party that lost jury verdict
  • File for RJMOL within 28 days after entry of judgment
  • You MUST have moved for JMOL at proper time of trial
    • Absolute prerequisite for RJMOL
    • Failure to do so waives RJMOL
Motions for a New Trial
  • Judgment is entered, but some error at trial requires starting over and having new trial
    • Can be based on any non-harmless error that makes judge think we should have a do-over
    • Party moves for this within 28 days after judgment
  • Examples:
    1. Judge gave erroneous jury instruction;
    2. New evidence that couldn't have been gotten before w/ due diligence;
    3. Misconduct by juror, lawyer, party, etc.;
    4. Judgment is against weight of evidence (serious error of judgment);
    5. Inadequate or excessive damages
  • If party met standard for RJMOL but waived by not moving for JMOL at trial, can move for new trial
  • Ordering new trial is less drastic than ordering RJMOL
    • New trial means starting over so same party might still win
    • RJMOL results in taking judgment away from one party and giving it to another
Remittitur and Additur
  • One ground for new trial is that jury's damage figure is excessive or inadequate
  • Standard for ordering new trial on this ground:
    • Damages figure shocks the conscience
  • Instead of new trial court might suggest Remittitur or Additur
  1. Remittitur: Playing hardball with P
    • Damage amount shocks the conscience
    • P has choice to take a lesser amount or go through a new trial
    • OK in both fed and state courts
    • Court can't lower figure set by jury; must give P the choice of lower figure or new trial
  2. Additur: Playing hardball with D
    • Damage amount shocks the conscience
    • D has choice to pay greater amount or go through new trial
    • Cool in state court, unconstitutional in fed court
    • Violates 7th Amendment
      • Applies only in fed court, state courts free to recognize additur
Offer of Judgment
  • At least 14 days before trial D offers to settle P's claim
    • P can accept and judgment entered for that amount
    • P can also reject and go to trial
    • If P wins judgment that is not more favorable than offer, P is liable to D for D's costs incurred after offer was made
Motion for Relief from Order of Judgment
  • Ask district court to set aside an order or judgment
  • Grounds and Timing (see chart on pg. 68):
    1. Clerical Error - Anytime
    2. Mistake, excusable neglect - Reasonable time, never more than 1 year
    3. New evidence that couldn't be discovered with due diligence for new trial motion - Reasonable time, never more than 1 year
    4. Judgment is void - Reasonable time, no maximum
  • *Also look at hypo on pg. 68 of Handout*
  1. Final Judgment Rule
  2. Interlocutory (Non-Final) Review
  3. Standard of Review by Court of Appeals
Final Judgment (FJ) Rule
  • We seek review of district court rulings at US Court of Appeals
  • Starting Point: Can appeal only from FJs
    • An ultimate decision by trial court of the merits of the entire case
    • File notice of appeal in district court within 30 days after entry of FJ
  • To determine if ruling is a FJ ask one question:
    • After making this ruling, does the trial court have anything left to do on the merits of the case?
    • If yes, not a final judgment
  • Examples:
    1. Denial of SJ motion not FJ
    2. Grant of motion for new trial not FJ
    3. Denial of motion for new trial is FJ
    4. Grant of motion to transfer to another district not FJ
    5. Grant of motion to remand to state court generally not FJ by statute
      • *Reasoning for all on pg. 69 (giggity)*
Interlocutory (Non-Final) Review
  • May be appealable even though not FJs
  1. Interlocutory Orders Reviewable as of Right:
    • Orders granting, modifying, refusing, preliminary or permanent injunctions
  2. Interlocutory Appeals Act (IAA):
    • Allows appeal of nominal order if:
      1. District judge certifies that it involves a controlling issue of law,
      2. As to which there is a substantial ground for difference of opinion, and
      3. The court agrees to hear it
  3. Collateral Order Exception: Appellate court has discretion to hear ruling on an issue if that issue:
    1. Is distinctive from the merits of the case;
    2. Involves an important legal question; and
    3. Is essentially unreviewable if parties must await a FJ
      • 11th Amendment provides that states and "arms of states" are immune from suit in fed court
      • Not just immune from damages but immune from being sued by all
  4. When more than 1 claim is presented in a case, or when there are multiple parties, the district court may expressly direct entry of a FJ as to one or more of them if it makes an express finding that there is no just reason for delay
    • *See pg. 70 of Handout for examples*
  5. Class Action:
    • Court of Appeals has discretion to review an order granting or denying certification of a class action
    • Must seek review at the court of appeals within 14 days of order
    • Appeal does not stay proceedings at district court unless the court of appeals or district says so
  6. Extraordinary Writ (Mandamus or Prohibition):
    • Original proceeding in court of appeals to compel district judge to make or vacate particular order
    • Not a substitute for appeal
    • Available only if the district court is violating a clear legal duty
Standard of Review by Court of Appeals
  1. When district judge decides questions of law, standard is de novo
    • No deference to district judge
  2. In a non-jury trial, when the district judge determines questions of fact, the court of appeals will affirm unless the findings are clearly erroneous
    • Do defer to district judge
  3. In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless reasonable people could not have made that finding
  4. On discretionary matters the court of appeals will affirm unless district court abused its discretion
  5. Not every error (even an error of law) requires reversal on appeal
    • No reversal is required if the error is harmless
  • *Look at examples on pg. 71 of Handout*
  1. Basic Idea
  2. Claim Preclusion (Res Judicata)
  3. Issue Preclusion (Collateral Estoppel)
Basic Idea (Preclusion)
  • The question is whether a judgment already entered (Case 1) precludes litigation of any matters in another case (Case 2)
  • If Case 1 and 2 are in different judicial systems, court in Case 2 applies the preclusion law of the judicial system that decided Case 1
  • *Look at examples on pg. 72 in Handout*
Claim Preclusion (CP) (Res Judicata)
  • Only get to sue on a claim once
    • Only get one case to in which to vindicate all rights to relief for that claim
  • Requirements:
    1. Case 1 and Case 2 were brought by same claimant against same D
    2. Case 1 ended in a valid FJ on the merits
      • General Rule: Unless the court said otherwise when it entered the judgment, any judgment is "on the merits" unless it was based on:
        1. Jurisdiction,
        2. Venue, or
        3. Indispensable Parties
      • True even if no adjudication in Case 1
    3. Case 1 and 2 asserted the same claim
      • Majority View: A claim is any right to relief arising from a T/O
      • Important Minority View: There are separate claims for property damage and for personal injuries b/c those are different "primary rights"
  • If Claimant won Case 1, CP may be called Merger
  • If Claimant lost Case 1, CP may be called Bar
  • *See examples on pg. 72-73 of Handout*
Issue Preclusion (IP) (Collateral Estoppel)
  • Narrower than CP
  • Issue was litigated in Case 1, same issue comes up in Case 2
    • If IP applies, won't allow issue to be relitigated in Case 2
    • Deemed established in Case 2
  • Requirements:
    1. Case 1 ended in a valid, FJ on the merits
    2. Same issue was actually litigated and determined in Case 1
      • Must have litigated in Case 1
    3. The issue was essential to judgment in Case 1
      • Finding on this issue is the basis for judgment
    4. IP can only be used against somebody who was a party to Case 1, or in privity w/ a party
      • Privity: A party to Case 1 represented someone who was not a party to Case 1
      • Example: class action where Rep represents members who are bound even though they were not parties
      • Judgment on Case 1 can be binding only on niggas who were parties in Case 1 b/c of Due Process
  • *See examples on pg. 74 of Handout*
Who Can Issue IP
  • Someone who was a party, or represented a party, in Case 1
  • When someone who was not a party to Case 1 tries to use IP in Case 2, it is called "nonmutual" IP
  • Comes up in Two Ways:
    1. Nonmutual Defense IP
      • The one using it was not a party to Case 1 and is D in Case 2
    2. Nonmutual Offensive IP
      • The one using it was not a party to Case 1 and is P in Case 2
  • This is 5th Requirement for IP (other 4 on last card)
  • Clear trend (including fed law) will allow nonmutual offensive IP if it is not unfair
    • Factors:
      1. P had a full and fair opportunity to litigate in Case 1
      2. P had incentive to litigate strongly in Case 1
      3. Could not have joined easily in Case 1
      4. No inconsistent findings on the issue
  • *For clarification of last 2 bullet points and the Factors, look at hypos on pg. 74-76 of Handout*
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