All Deck Flashcards

Question

Misjoinder of Parties

Answer 1

FRCP 21 Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.

Answer 2

- P’s are cigarette smokers and their spouses, filed suit against D’s, tobacco manufacturers. - D seeks to sever the claims of the three sets of plaintiffs into three separate actions. - Court concludes these claims don’t arise out of the same transaction b/c P’s were smoking at different ages, smoking different brands, quit for different reasons and under different circumstances, 30-year span, would cause jury confusion = severs.

Answer 3

Class Action (1) NUMEROSITY: the class is so numerous that joinder of all members is impracticable; (rule of thumb: class members of 40 enough to satisfy numerosity). (2) COMMONALITY: there are questions of law or fact common to the class; (3) TYPICALITY: the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) ADEQUACY: the representative parties will fairly and adequately protect the interests of the class.

Answer 4

- P filed an action against the government about INS’ lack of notice before bringing a document fraud action and deportation proceedings against them. - Some Ps received fair notice and committed document fraud. - Even though some members received fair notice, the fact that there are a few exceptions does not mean there are no common questions of law or fact. - Even though some of the class representatives did commit fraud, the case is about notice, they all got notice, so the reps can still vigorously protect the interest of the class. (Adequacy)

Answer 5

- Falcon originally brings suit against his employer alleging that he was not promoted because he is a Mexican American, white guy got job. - He also brings a class action on behalf of Mexican American applicants for employment who were not hired. - Falcon’s claim is not typical b/c he does not have a hiring claim like the other members of the class. - Falcon did not satisfy adequacy b/c he did not have a hiring claim and, thus, did not represent the interests of the class. - P approached individual and class claims differently. - Class certification is reversed.

Answer 6

- No one does b(1) class actions - b(2) class actions are only for injunctions (diff b/w b(2) and b(3)) - if seeking money damages, have to do it under b(3) - b(3) class actions have series of other boxes you must check: o common Q has to predominate over the differences. o Court has to decide whether class action is superior way to adjudicate. - How to bring class action: o Complaint has to plead the class (Twombly comes into play). o Certifying class action – by motion or ask judge to decide to go

Answer 7

- Courts of general jurisdiction can hear any case - Courts of limited jurisdiction may only hear specific types of cases. - Federal courts are NOT courts of general jurisdiction (there are no courts of gen jdx at federal level.

Answer 8

involving citizens of different states, citizens of a state and citizens of a foreign state, a foreign state as P and citizen of a state AND the amount in controversy exceeds $75,000; there must be complete diversity at the time of filing of the complaint (but congress can change this, it is not a constitutional requirement). Exception - divorce, probate, big disasters

Answer 9

permanent home, you only change domicile if you move, if you intend to remain there permanently. Factors to look at :where you vote, taxes, employer, property, etc.

Answer 10

Every state in which it is incorporated AND the state where it has its principal place of business (nucleus of business, headquarters, leaders).

Answer 11

- P’s Mr. and Mrs. Mas sued Perry (Louisiana), who they rented an apartment from, b/c they discovered their bedroom and bathroom contained “two-way” mirrors - They at school in LA, Mrs. Mas is domiciled in Mississippi. Mr. Mas is citizen of France. While both of them moved, they didn’t intend to establish new domicile. - Therefore, there is complete diversity. Amount in controversy is determined by the amount claimed in good faith (claimed over $ amount).

Answer 12

- P is citizen of CA and “husband is his spouse”. - Court says bunch of things for domicile that establish your main cave. - Enough for diversity

Answer 13

District courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S. Concurrent jurisdiction over federal claims in state court. (Well-Pleaded Complaint Rule – Ps affirmative claim for relief has to be based on federal law.) Note: You can litigate almost all federal questions in state court.

Answer 14

- Motley’s had annual passes resulting from injuries by RR. - On Jan 1 1907, D declined to renew passes b/c act of congress passed in 1906 forbids giving of free passes. - Motley’s claim is a breach of contract claim. - Court concludes it is not a federal question case b/c original cause of action doesn’t arise under constitution. Not enough that P alleges anticipated defense to his cause of action and asserts that defense is invalidated by the US Constition

Answer 15

In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the U.S. Const. Such supplemental jurisdiction shall include claims that involve joinder or intervention of additional parties; - letting you bring state law claims into federal case and lets you bring in additional parties arising out of the same transaction. - cannot bring in parties that would destroy diversity

Answer 16

Rule 28 USC sec 1367(c): the district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if: (1) the claim raises a novel or complex issue of State Law (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction (state law predominates). (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

Answer 17

(1) Do nothing – Default (2) Attack – Motion to dismiss under Rule 12(b) (3) Answer – Rule 8(b)(c)(d)

Answer 18

(i) within 21 days after being served with the summons and complaint; (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the U.S.

Answer 19

RULE FRCP 55(a) 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 by affidavit or otherwise, the clerk must enter the party’s default.

Answer 20

(1) By the clerk. If the P’s claim is for a sum certain, the clerk—on the P’s request, with an affidavit showing the amount due – must enter judgment against a D who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a fiduciary who has appeared. If the party against whom a default judgment is sought has appeared that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings when, to enter or effectuate judgment, it needs to: (A) conduct an accounting (B) determine the amount of damages (C) establish the truth of any allegation by evidence, or (D) investigate any other matter.

Answer 21

Motion to set aside default. Three factors for deciding whether there is “good cause” for relief from default: (1) whether P will be prejudiced (2) whether D has a meritorious defense (3) whether culpable conduct of D led to default (*state of culpability will probably depend on how serious prejudice is and whether defense is meritorious; requires greater showing of fault if there is little to no harm to the other party) Prove Me Culpable

Answer 22

- D’s attorney’s secretary secured extension for filing an answer. - D filed no answer claiming misunderstanding from atty’s secretary re: extension (45 days in addition to normal period of 30 days). - P asked clerk to enter default. - D files a notice of retention, motion to set aside default, then Answer, crossclaim, and discovery. - D also files a Rule 60 Motion to set aside default judgment, but default judgment had not been entered yet. - Denial of Motion to set aside default was reversed b/c P suffered no prejudice by reasons of the tardy pleadings and D presented a meritorious defense in its Answer. D’s counsel’s conduct was inexcusable and careless but NOT culpable.

Answer 23

Courts would be more reluctant to let you out of default judgment b/c you messed up by not replying, missed notice of default and now you are at judgment. - Will need more persuasion as to why you let it get to this. Grounds for relief from a final judgment: (1) mistake, inadvertence, surprise, or excusable neglect (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial Rule 59(b) (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party (4) the judgment is void (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. ``` Mother Never Found Victor's Stash of Antidotes ```

Answer 24

RULE: 28 USC 1441(a): except as otherwise expressly provided by act of congress, any civil action brought in a state court of which the district courts of the U.S. have original jurisdiction, may be removed by the D or the D’s, to the district court of the U.S. of the district and division embracing the place where such action is pending.

Answer 25

- State courts use state rules even if substantive law is federal o Ex: state discovery is more lenient than federal rules. - juries could be more favorable

Answer 26

Removal based on diversity of Citizenship: A civil action otherwise removable solely on the basis of diversity (and there is no Fed Q), may not be removed if any one of the defendants is a citizen of the State in which such action is brought.

Answer 27

Timing and Unanimity (28 USC 1446): 30 days to remove after receipt by D, if not you waive it; - if multiple D’s and served at different times, last served D gets to decide whether to remove or not, - and it has to be unanimous. Each D gets option to remove, but has to be unanimous.

Answer 28

Adding a defendant who destroys complete diversity OR add a citizen defendant. Court can ignore if good reason to believe just a spoiler

Answer 29

If improper, can ask to remand case back to state court within 30 days (unless there is no subject matter jurisdiction). Once remanded, usually no way to reverse that.

Answer 30

``` Notice of Motion Memo of Points and Authorities (legal brief) Affidavits or Declarations (evidence) Response Memo of Ps and As Affidavits or Declarations Reply Memo ```

Answer 31

Three Principal Defenses 1. It didn’t happen that way (denial) 2. the case described in your complaint is flawed 3. something else happened that overrides your claim (affirmative defense)

Answer 32

every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion (a motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed): (1) lack of subject-matter jurisdiction (FAVORED) (2) lack of personal jurisdiction (DISFAVORED) (3) improper venue (DISFAVORED) (4) insufficient process (DISFAVORED) (5) insufficient service of process (DISFAVORED) (6) failure to state a claim upon which relief can be granted; and (FAVORED) (7) failure to join a party under Rule 19 (FAVORED)

Answer 33

failure to raise them in the first responsive paper filed means they are gone. You waive them by failing to assert in your Answer or by pre-answer motion. (don’t need a 12(b) motion as long as you assert it in your Answer).

Answer 34

you can raise at any time.

Answer 35

12(c) Motion for Judgment on the Pleadings | o Getting a resolution of a defense at/after answering

Answer 36

12(d) Matters outside the pleading | o Getting a resolution of a defense (or denial) after answering

Answer 37

12(e) More definite statement | o Unintelligible complaint; need more details

Answer 38

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party.

Answer 39

Neither the federal government nor any state may deprive any person of life, liberty, or property without due process of law.

Answer 40

Catching them in a state to be sued in that state. Jurisdiction by “catching” endures, even if there are no other contacts (still works)

Answer 41

ability of local courts to exercises jurisdiction over out of state defendants. CA has made personal jurisdiction powers as broad as constitution allows.

Answer 42

(1) what does the state’s long arm statute authorize? (2) what are the federal/state/ due process limits that apply here? (Would exercising that jurisdiction comply with due process?) -> is there general or specific personal jurisdiction? If you see a person being “haled” into court, ask: 1. Are they at home here? 2. If not, do they have enough contacts with the state to make it “fair” to make them defend? - Have they “availed” themselves of the state? - Is it reasonable to make them defend (burden on D, and import to P/witnesses)? - If so, does the claim relate to the contacts that show availment?

Answer 43

- Burger king wants damages from D’s breach and wants to be able to sue in Florida. - D believes they don’t have minimum contacts to be haled into court in Florida. Court holds that D does have minimum contacts b/c - he established a substantial and continuing relationship w/ BK’s Miami headquarters (20 yrs), - received fair notice from the contract documents (contract says Florida) and - the course of dealing/negotiations that he might be subject to suit in Florida (payments were sent to Florida, ongoing interaction w/ Florida headquarters. 5 Factors that help resolve this question of reasonableness include - the defendant’s burden if jurisdiction is imposed, - the forum state’s interest in imposing jurisdiction, - the plaintiff's interest in obtaining relief, - the interstate judicial system's interest in obtaining efficient resolution of controversies, and - the furtherance of fundamental substantive social policies.

Answer 44

Respondents purchased a new Audi from petitioner in NY. Moving to AZ but car crash in OK. - Respondents sued in Oklahoma claiming their injuries resulted from defective design and placement of the Audi’s gas tank and fuel system. - Court holds that there is no personal jurisdiction in Oklahoma b/c - Volkswagen conducted no activity in Oklahoma whatsoever - no close sales and no services performed in OK, Respondents seek to base jurisdiction on the isolated occurrence, foreseeability alone is not sufficient. Volkswagen did not avail themselves of any of the privileges and benefits of OK law. Fact that a vehicle was put into the “stream of commerce” is not enough.

Answer 45

Car accidents, not in Montana but Ps suing in Montana. Ford markets (advertises), sells (big resale market), and services specific models in Montana demonstrating a willingness to sell to and serve Montana customers. - enough for personal availment

Answer 46

Specific Jurisdiction – the specific claim arises out of or related to the activity that establishes your contracts with the state. General Jurisdiction – it seems fair to hold you to account for any claim against you in your home state.

Answer 47

Railway workplace injury. Injuries did not happen in Montana. BNSF a DE corp. With PPB in Texas. 2,000 miles of track in Montana (6% of nationwide) and 2,100 employees (5% of workforce of Montana), but Court found activities are not enough for general jurisdiction Rule - PPB and where management are

Answer 48

Disability discrimination claim. R - Permitted discovery of facts to demonstrate jurisdiction, at least where the facts are peculiarly within the knowledge of the opposing party. R - Cannot look at evidence in light of a 12b6 motion, if does then has to turn it into a MSJ

Answer 49

FRCP 4(e) – deliver copy of summons and complaint to individual personally, or leaving a copy at individuals dwelling or with someone of suitable age and discretion who resides there or, deliver to agent Must be: A third party serving, recipient over 18 and responsible. Can’t serve at a person’s office.

Answer 50

If a D located within the U.S. fails, without good cause, to sign and return a waiver requested by a P located within the U.S., the court must impose on the D: (A) the expenses later incurred in making service; and (B) the reasonable expenses, including atty’s fees, of any motion required to collect those service expenses.

Answer 51

Judge can only look at the complaint. Cannot hold a hearing to determine plausibility like in Palin v. NYT

Answer 52

When and why would you do this? - After the pleadings are closed—but early enough not to delay trial – a party may move for judgment on the pleadings. - if you didn’t waive the disfavored defenses or raise them in a Rule 12(b) motion. (e.g., raises defenses on Answer, but didn’t do a 12(b) motion, you can use 12(c). - as long as you put defenses in Answer, no deadline to raise w/ 12(c) motion.

Answer 53

1. Answer to a complaint 2. Answer to a counterclaim 3. Answer to a crossclaim 4. Answer to a 3rd Party complaint

Answer 54

FRCP 8(b) (1)In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party (2) Denials – a denial must fairly respond to the substance of the allegation.

Answer 55

- Eakin filed a complaint against Wheat. - Wheat acting pro se, filed a handwritten document as his Answer (“I deny all allegations”). - Eakin requested and was granted a default judgment by the clerk for Wheat’s failure to plead or otherwise defend this action. - No advance notice was given to Wheat. Clerk was wrong in entering default b/c while the form and language of Wheat’s response was less than desirable, he did state in short and plain terms his general denial.

Answer 56

- In D’s Answer, it stated that it was w/o sufficient knowledge or info to admit or deny. - D wants to amend its Answer to deny that it designed, manufactured, and sold the machine in Q. - P argues denial of knowledge or info was false and should be treated as an admission. - Court rules that D’s averment of lack of knowledge was not proper and should be deemed an admission b/c Crompton clearly had access to and knowledge of that agreement b/c Crompton and Hunter. - Add’tlly David’s complaint was filed 11 mo b4 the expiration of SOL and Crompton’s delay in denying liability allowed the SOL to expire, this delay is unduly prejudiced to David therefore deny request to amend b/c it would result in undue prejudice to David. Crompton now admitted something that is not true – judicial admission.

Answer 57

- GEOMC filed amended complaint. - Calmare filed Answer asserting 9 affirmative defenses. - Almost a year later, Calmare sought leave to amend Answer to add several additional affirmative defenses and several counterclaims. - GEOMC says affirmative defenses lack enough facts to make them plausible. R - Twombly applies to affirmative defenses but in light of the short period allowed for pleading defenses (as short as 21 days), the Twombly rule should be applied with less rigor to affirmative defenses.

Answer 58

FRCP 13(a) – there are certain counterclaims D must state if: (A) – arises out of the transaction or occurrence, make It or lose it (B) – does not require adding another party over whom the court cannot acquire jdx - use it or lose it

Answer 59

13(b) Permissive Counterclaim – a pleading may state as a counterclaim against an opposing party any claim that is not compulsory. *If sued, must counterclaim if claim arises out of the same deal; can add any counterclaims that are unrelated.*

Answer 60

Only add a claim against a co-D or a co-P, if it arises out of the same transaction.

Answer 61

FRCP 14(a)(1): You can only as a D bring in a 3rd party if you allege that that person is or may be liable to you for all or part of the claim against you.

Answer 62

RULE: 28 USC 1367(b) (only about cases where ONLY diversity jdx exists) – In a case solely on diversity jdx, supplemental jurisdiction does not apply if 3rd party or joinder over claims added by Plaintiff would result in lack of complete diversity.

Answer 63

- Kroger (Iowa) sued OPPD (Nebraska) for wrongful death action. - OPPD said if we are liable then Owen Equip (Iowa). is responsible b/c they were operating the lift. - Kroger then amends complaint to name Owen Equip. - Owen Equipment says there is no complete diversity, since actually in Iowa. - Kroger amending the complaint broke diversity. Federal courts in diversity cases can exercise supplemental jurisdiction over third party D’s who are citizens of the same state as the P w/o destroying diversity as long as the P does not make a claim against the 3rd party D.

Answer 64

1. In diversity cases, no supplemental jurisdiction over state law claims 2. In diversity cases, no supplemental parties that would destroy the original diversity. 3. BUT, a D may bring in 3rd party D’s not diverse to it or the plaintiff. 4. AND, if one P can meet the jdx amount ($75,000), claims from P’s who can’t, can be joined if they arise out of the same controversy.

Answer 65

FRCP 15(a): May amend once w/o anyone’s consent - Within 21 days after you get D’s Answer or motion - Within 21 days after serving pleading In all other cases, amend only w/ consent or courts leave. Court should grant leave when justice so requires. A court may deny a request to amend an answer if the amendment will result in undue prejudice to the other party.

Answer 66

- David sued Crompton alleging Crompton designed, manufactured, and sold the machine in question to Crown Products Corporation (Crown), which was David’s employer. - In its answer to the complaint, Crompton stated that it did not have sufficient knowledge to admit or deny the allegation. - Subsequently, Crompton moved to amend that answer and deny that it designed, manufactured, and sold the shredding machine. - Crompton clearly had access to the agreement and should have known that they weren’t liable. - P filed action 11 months before SOL expired = prejudice. - D wants to amend its Answer. - Court denies D’s request to amend b/c it would result in undue prejudice to P b/c P has no fault and allowing D to amend would leave P without any possible remedy b/c SOL has run.

Answer 67

P is at fault. If P filed earlier, then time to amend. P is more culpable. Not much harm, since not the only defendant. Case not over if allow amendment.

Answer 68

3 different insurance companies who should be reliable. President went out to look at it and it was not their slide, but P thought it was. D tells court right away. No real fault to P, nor did they sit on their rights

Answer 69

``` for allowing an amendment: Harm to nonmoving party if its granted Harm to moving party if its denied Fault of moving party Fault of nonmoving party ```

Answer 70

Trial. What happens if you introduce evidence on a claim or a defense you didn’t plead and the other side objects? Can you amend? Amendments During and After Trial - FRCP 15(b)(1) (less generous than 15(a)) - Can permit if it will aid in presenting the merits and if objecting party fails to convince court that it will prejudice them. - Court may grant a continuance to enable the objecting party to meet the evidence.

Answer 71

If you raise something and no one objects, it is considered implied consent.

Answer 72

(1) “of course” at the start (2) at trial, if objected, with a stricter standard (3) at trial if tried, even if no formal steps (4) all others, freely when justice requires

Answer 73

All about the statute of limitations. 2 issues (15(a)(b) standards apply, this is just Q about time) - Adding new claims against existing parties (A) when the law that provides the applicable statute of limitations allows relation back (B) as long as claim arises out of same conduct, transaction, or occurrence in the original pleading. - Changing a party (C) If arises out of same transaction and if within period provided by 4(m) – 90 days – for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudice in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity

Answer 74

- Krupski sues Costa Cruises but wants to add Costa Crociere as a D and proceed with their case to seek compensation for P’s injuries. - Krupski allowed to add Costa Crociere b/c Costa Crociere should have known it wasn’t listed as a D b/c of a mistake and all 3 reqs. to relate back were satisfied, Same name. Same attorney.

Answer 75

Request to the court to tell somebody not to do something, until the legal system can decide whether they can do it or not The test is: a preliminary injunction is appropriate when a plaintiff demonstrates that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor. (Irreparable Harm) Question: Is this a harm that can be remedied with money? (Likelihood of success on the merits) Make a guess on who will prevail - you do not predict the determination of the merits. If you can pose serious questions about the merits, then may be able to get preliminary injunction. The balance of hardships is asking who will get hurt more here. (Balance of Hardships) The balance of hardships between the parties tips sharply in favor. (Public Interest) Finally, the public interest favors a preliminary injunction

Answer 76

- Forest trying to ESD to clear the trees. - Environmental damage (hella trees) can hardly be remedied by money. - Here, the balance points sharply to AWR, so then only need serious questions (Whether ESD is appropriate here, since small economic loss and not safety or hazardous). - The balance of hardships between the parties tips sharply in favor of AWR (no appeal possible and loss of trees. - Public interest lies in preserving the national interest (versus some temporary jobs). Sliding scale - higher the likelihood then lower the balance. This is used in the 9th circuit and some other circuits but not everywhere.

Answer 77

- A group of abortion providers filed lawsuit seeking an injunction preventing enforcement of the admitting-privileges provision as applied to physicians at two abortion facilities. - Does not meet standard for prelim. Injunct. Because - 1. Not clear there are suable defendants (not likely to succeed on merits), - not clear if there is harm (this is about injury NOT irreparable harm), - 3. Injury is NOT irreparably (injury is money)

Answer 78

1. TROs expire after 14 days. - Judges can let them last longer than 14 days 2. TRO can be issued without notice (ex parte) - As practical matter, must try to contact other party before issuing one 3. TROs are covered by the same standard as Preliminary Injunctions, but to get one you have to prove that the harm you will suffer will be immediate

Answer 79

- Reason why its issued - State its terms specifically - Describe the act or acts restrained or required - Post security*** (not always required, judge may not require for constitutional law) - They make the person seeking the order to post a bond to cover any damages - Standards are the same for both, TRO is a pre-preliminary injunction

Answer 80

Cannot get a permanent injunction unless you’ve succeeded. Both talking about success on the merits. Still ask the other 3 questions though.

Answer 81

``` FRCP 16(e): trial is planned out in advance; conference is discretionary. Mandatory in Northern District - mostly set up the entire trial ```

Answer 82

May obtain discovery requiring any nonprivileged matter that is relevant to any party’s claim or defense. 3 limitations: non-privileged, relevant, proportional

Answer 83

- Initial, expert and pretrial disclosure - Requests for Production *most important disc devices - Depositions *most important disc devices - Interrogatories - Requests for exams - Requests for admissions

Answer 84

``` FRCP 26(a) - Initial, expert, and pretrial disclosure * only need to disclose witnesses and documents that support your claims or defenses. * must do initial disclosure 14 days before discovery conference ```

Answer 85

30-60 days before trial | Anything you want to use, you need to include in pretrial - witnesses, documents, evidence

Answer 86

Name, address, and telephone of each individual likely to have discoverable information. But does not have to have all potentially relevant info. Only have to provide info that supports your case.

Answer 87

When you can obtain the document

Answer 88

Form specified in request

Answer 89

The response must state that inspection will be permitted as requested or state with specificity the grounds for objecting to the request including the reasons; - must state whether any responsive materials are being withheld on the basis of the objection.

Answer 90

- D put general objection, - need to put reasons for objections. - NO general objections. - If not producing, say why. Must be specific about objection - why unduly burdensome? Why privileged?

Answer 91

No more than 25 written interrogatories, including all subparts. Standard for leave to ask more?

Answer 92

WHO – the party WHEN – 30 days HOW – separately and fully OBJECTIONS – need to be specific, if not waived

Answer 93

- 10 total depositions per party - 7 hours - can depose same witness only once - subpoena if deposing a nonparty witness 100 miles of residence, employment, or go to them

Answer 94

- License to build disco. - Board of Selectman, - his building set fire, conspiracy, license went to a white person. - P needed more evidence, but did not take any depos or request more docs re his claim, when given opp. Lost.

Answer 95

- subpoena for deposition | - subpoena for requests for production

Answer 96

Fraud claim that Monsanto knew it was selling anti-enviro products. - Monsanto wants out. - 30(b)(6) deposition (qualified witness) answers in depo are binding, witness said did not know. - Nevada did not establish any elements for fraud in the depos. MSJ granted.

Answer 97

``` FRCP 37(d)(1)(A)(i)(d) Party’s failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection. - The court where the action is pending may, on motion, order sanctions ```

Answer 98

By agreement or court order Standard is “good cause” + stipulation or court order RULE: is mental health in controversy? RULE: To overcome right to privacy you need to allege specific facts

Answer 99

- D has moved court to allow physical/mental exam. - P opposes but if allowed doesn’t want Q’s asked about sexual history and wants lawyer present. - Court approves examination but grants P request to not ask Q’s about sexual history, - but atty not allowed to be present. - B/c of P’s specific allegations, D has shown w/ specificity that they have good cause to request. - Sexual history not in controversy. D’s do not establish specific facts justifying inquiry into P’s zone of sexual privacy

Answer 100

Make a reasonable inquiry

Answer 101

Timely after learning your response was incomplete or incorrect.

Answer 102

Rule 26 (c): court may allocate discovery expenses based on good cause. - Moving party for motion to allocate cause has the burden of proof for good cause by showing non-stereotyped and non-conclusory fact. - Rule 26(b)(1) - proportionality factors: 1. considering importance of issues at stake 2. amount in controversy 3. parties’ relative access to relevant info 4. parties’ resources 5. importance of the discovery in resolving the issues, 6. whether burden or expense of the proposed discovery outweighs its likely benefit. Party resisting discovery has the burden of showing 1. undue burden or expense, 2. once relevance has been shown it is up to the responding party to justify curtailing discovery

Answer 103

(a) it has any tendency to make a fact more or less probably that it would be w/o the evidence; and (b) the fact is of consequence in determining the action.

Answer 104

Former CEO of Spirit retires with noncompete but then competes. Test: 1. Case not important to society 2. Disco cost shift and is it productive? No 3. Judge neutral on relative access. 4. Both rich. 5. Not important cause other ways to obtain. 6. Burden not outweigh benefit because low yield.

Answer 105

Awards special protection to work product revealing the atty’s mental processes (oral statements made by witnesses) - Applies only to things in anticipation of litigation. - Applies if an atty, agent, consultant, or insurer are involved = work-product. - Shield can be overcome if one shows substantial need and that there is no other way to get this information. Requirements: - Documents - Prepared for in anticipation of litigation - By party or representative

Answer 106

Privilege extends only to communications and not facts. Atty-Client privilege can be waived; only clients have power to waive it. Doesn’t make events you tell your attorney about privileged, only covers communications. Atty-Client privilege applies to employees who may have info that the attorney uses to provide legal advice. Requirements - Communication - Between counsel and client (client is anyone who works for corp. that has confidential information) - Made confidentially - For the purpose of legal advice

Answer 107

- Upjohn was informed that one of Upjohn’s foreign subsidiary made payments to or for the benefit of foreign gov’t officials in order to secure gov’t business. - Upjohn began internal investigation; sent questionnaire + interviewed recipients of questionnaire + some other 33 Upjohn officers or employees. - Upjohn voluntarily submitted a preliminary report to the securities and exchange commission. - IRS began an investigation. IRS wants production, - Upjohn doesn’t want to produce due to atty-client privilege (mental impressions on memos and questionnaires with low level company people). - Court held attorney client privilege did apply to mental to low level people as "clients".

Answer 108

If discovery sought is - unreasonably cumulative or duplicative or - can be obtained from some other source that is more convenient, less burdensome, or less expensive - or late in the game.

Answer 109

``` FRCP 26(g)(1) We have this b/c rule 11 doesn’t apply to discovery. By signing, an atty or party certifies that to the best of the person’s knowledge, info, and belief formed after a reasonable inquiry that disclosure is complete and correct. No duty to act on an unsigned disclosure, request, response, or objection until it is signed. ```

Answer 110

Must supplementing disclosures and responses in a timely manner if you find out the correct information.

Answer 111

Timing Under 26(f) 1. When you have to confer - At least 21 days before Rule 16 Conference or order 2. When do you present the discovery plan - Within 14 days of the conference Cannot begin until after the Rule 26f conference

Answer 112

Each sides’ views on: - changes in timing or context of disclosure - subject of discovery, phases, or limits - e-discovery issues - privilege issues - any changes in limits

Answer 113

- P alleges that he was subjected to excessive force and an unreliable investigation and hearing concerning the use of force while a pretrial detainee in the Manhattan Detention Complex. - P wants to compel D to produce documents. - P included a conclusory statement asserting he met and conferred. - Court waived meet and confer requirement b/c of friction b/w parties and would have been futile. - FRCP 34 – must list reasons for objecting; City of NY listed boilerplate objections. - City of NY ordered to produce documents or provide an explanation in 2 weeks.

Answer 114

- FRCP 26(c) The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense; - lays out shaping tools courts have to enforce!; applies to PO and MTC, - lets judge lay out specific terms for discovery. (Vinson appealed to forbid the health exam, but was denied)

Answer 115

- P alleges that D deprived her of promotions and work shifts or assignments that she was otherwise eligible to receive for no reason other than her medical condition of epilepsy. - P wants to compel further response to RFP 15. - D wants a protective order for emails and wants to compel Ps deposition for a certain date. - D’s objection saying that at this point discovery is going beyond the needs of the case (diminishing returns). - Court narrows scope but allows discovery

Answer 116

Describing things not being produced.

Answer 117

- disobey a court order for discovery - don’t show up for your own deposition - don’t respond to interrogatories or production

Answer 118

- P provided photos she claimed depicted condition of her apartment several days after incident. - During depo P said her son or friend took photos 2 days after incident. - D requested smartphones allegedly used to take photos. - Atty for P produced native files including metadata. - 67 out of the 70 photos taken 2 years after incident. - P’s atty moved to withdraw as counsel b/c of “facts he was not aware”. - Court lets attorney off b/c metadata. Rules against Lawrence for faking shit. Rare: dismisses suit entirely.

Answer 119

- subject matter jdx - failure to join a required party - failure to state a claim - any properly reserved 12(b) claims

Answer 120

FRCP 56 – the concept of summary judgment – testing the factual sufficiency of the opponent’s case; the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FOR THE P: show there is no real dispute about any element of the claim; he will be able to prove all elements. (P bears burden of showing that every element of what they are claiming is true) FOR THE D: show there is no real dispute about ONE element of P’s claim; the P will not be able to prove ONE element. (D just have to show that P can’t prove an element or that P will fail)

Answer 121

Judgment as a matter of law (after trial) If a party has been fully heard on an issue during a jury trial and the court finds that a reasonably jury would not have a legally sufficient evidentiary basis to find for the party on that issue.

Answer 122

D needs to show that no reasonable juror could find for P on one of the essential elements for its claim.

Answer 123

- Coulter Houchens disappeared in August 1989 and has not been heard from since. - His wife is trying to collect either of two life insurance policies issued by American, which covered Mr. Houchens for accidental death. - D filed MSJ. Court affirmed MSJ b/c the burden to prove that Mr. Houchens’ death was an accident is on Mrs. Houchens and there is no evidence showing that the death was an accident. - Circumstances surrounding his death (since nobody knows) would not lead a reasonable juror to find for Mrs. Houchens.

Answer 124

There are three subsidiary rules for viewing the evidence offered by the parties to decide what a reasonable juror could or could not do. * All inferences are drawn in favor of the nonmoving party* * The evidence must be viewed in the light most favorable to the nonmover* * The judge may not weigh the evidence or judge credibility*

Answer 125

- Police sergeant Jeffrey Cotton fired 3 bullets at Robert Tolan and punctured his right lung. - D(Cotton) wants MSJ granted. - D disputed facts: dimly lit, mom refusing orders to remain calm, Tolan shouting, tolan moving to inference. - Supreme court ruled that lower court failed to adhere to fundamental principles to draw reasonable inferences in favor of the nonmoving party (Tolan) - Court failed to credit evidence that contradicted some of its key factual conclusions and the court improperly weighed the evidence in favor the moving party.

Answer 126

- P Ulysses Alvarez is a Hispanic American citizen who was employed as a probationary police officer by the D. - P was discharged and P sued for employment discrimination. - D proffered P’s deficient performance throughout his field training and probationary period. - P didn’t contest that he had performance deficiencies. - P alleges he was not alone in his performance issues. - D submits evidence showing Caucasian officer that was discharged for failure to meet department expectations. - D filed MSJ. Summary judgment - affirmed b/c no genuine issue of material fact existed as to whether the D’s nondiscriminatory justification for the P’s discharge was merely a pretext for unlawful discrimination. - Judgment affirmed.

Answer 127

A party asserting that a fact cannot be or is genuinely disputed, must support the assertion. A party making a motion for summary judgment does not need to provide affirmative evidence in the form of affidavits to support its motion. Must support your assertion, HOW? (A) citing to particular parts of materials in the record, including depositions, documents, ESI, affidavits or declarations, etc. disc materials. (B) by showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Answer 128

- P Catrett sued Celotex Corp alleging that the death in 1979 of her husband resulted from his exposure to products containing asbestos manufactured or distributed by 15 named corporations. - In objection to the summary judgment motion, Catrett submitted three documents that suggested the decedent had been exposed to Celotex’s products. - The district court granted summary judgment, because Catrett lacked sufficient evidence to show her husband had been exposed to Celotex asbestos in the District of Columbia or anywhere else. - moving party must offer evidence which if not contradicted would leave a reasonable juror no choice but to find for him or her. - If he or she does not, the motion must be denied. - Assuming that standard is met, the nonmoving party must respond with evidence which would allow (not compel) a reasonable juror to find for her. If she does, the motion has to be denied. IF she fails the motion must be granted.

Answer 129

- Leonard K. Bias was a basketball star who died from cocaine intoxication. - Prior to Bias’ death, him and his parents directed Fentress to obtain a one million-dollar life insurance policy on Bias’ life but he didn’t. - D’s MSJ affirmed b/c Bias failed to come forward w/ such facts that there is a genuine issue for trial. - Moving party established that P was a drug user and that no company would have given a drug user a 1-million dollar life insurance policy. - Trial judge disregarded the testimony of parents that their son did not use drugs because they did not have evidence of the specific instances of drug use that the D’s had from their teammates. - No reasonable juror would find that Bias was not addicted to drugs and would not be able to get a life insurance.

Answer 130

(1) defer considering the motion or deny it (2) allow time to obtain affidavits or declarations or to take discovery; (3) issue any other appropriate order -> more typically grant an extension.

Answer 131

FRCP 56(f) – Judgment independent of the motion, the court may: (1) grant summary judgment for a nonmovant (2) grant the motion on grounds not raised by a party (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute -> typically it would be judge saying “I want you to move for summary judgment” Can adjudicate some but not all issues in a case.

Answer 132

If you have essential elements enough to make it enforceable, the fact that some details are not hashed out doesn’t make it unenforceable. In settling lawsuit, you can agree to things you couldn’t get in court. Not limited, doesn’t have to be within realm of things court may order.

Answer 133

FB wants settlement agreement to be enforced and end litigation. Settlement Agreements are enforceable and don’t have to have all the details spelled out to make it enforceable

Answer 134

DNC wins b/c RNC did not establish that a significant change in circumstances warrants revision of the consent decree. Decree is binding b/c contract

Answer 135

In suits at common law (distinguishing from at equity), where value in controversy shall exceed 20 dollars, right of trial of jury should be preserved.

Answer 136

- Petitioner, a Negro woman, brought this action under s 812, claiming that respondents, who are white, refused to rent an apartment to her because of her race, in violation of s 804(a). - D wants jury trial. - 7th amendment applies to actions enforcing statutory rights. Could get jury on Title VII if asking for money. - Always look at was there a kind of remedy that came from law or equity? Look at the remedy carefully. Money = yes jury. Equity = no jury.

Answer 137

On any issue triable of right by a jury, a party may demand a jury trial by: - serving other parties w/ a written demand – which may be included in a pleading – no later than 14 days after the last pleading directed to the issue is served and filing the demand in accordance with Rule 5(d). A proper demand may be withdrawn only if the parties’ consent

Answer 138

In a demand, a party may specify the issues that it wishes to have tried by a jury, otherwise it is considered to have demanded a jury trial on all the issues so triable.

Answer 139

FRCP 50. Judgment as a Matter of Law. What standard does a Court used to decide whether a judgment as a matter of law should be granted? Difference b/w JMOL and Summary Judgment is when they happen MSJ – before trial; JMOL = after party has been fully heard, at any time before case is submitted to the jury. *same standards as MSJ* Can make JMOL motion after verdict, but ONLY if JMOL done before it went to jury.

Answer 140

- Manager testified that he inspected the defective tire and that the tire he inspected was a “white wall” tire. However, Guenther testified that the tire he was adjusting when it exploded was a “black wall” tire. - No reason appears why a jury should not be able to readily resolve the problem at this time in this appeal. - This was not proper as such a minor detail should not be a basis for a directed verdict. In this particular case, this question is one that a jury could easily resolve on appeal.

Answer 141

Grant a remittitur when a jury’s verdict is so excessive that there appears plain injustice or a monstrous shocking result.

Answer 142

- Strip’n’cavity search in jail. - D’s want new trial on damages. - Renewed for motion as a matter of law for $1. - P’s want to hold onto $750,000. - 3 prongs: only if reasonable suspicion, her own testimony was sufficient on mental anguish, - Judge goes to facts and uses it b/c of facts that reasonable juror could find for her.

Answer 143

For award of damages, view against evidence of damages done. The usual formulation is “against the clear weight of the evidence” or due to an error of law such that allowing the verdict to stand would be a miscarriage of justice. Remittitur – part of new trial motion Compels party to choose b/w reduction in an excessive verdict or new trial

Answer 144

The court may require a jury to return only a special verdict in the form of a special written finding on each issue of fact. McCabe v Mais

Answer 145

“against the clear weight of the evidence” or due to an error of law such that allowing the verdict to stand would be a miscarriage of justice.

Answer 146

juror can’t testify about what goes on in room.

Answer 147

Jurors can testify about what goes on in jury room, they just can’t testify about their own mental impressions/processes. (CA follows Iowa rule)

Answer 148

When a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal D, the 6th amendment requires that the no impeachment rule give way in order to permit the trial court to consider the evidence of the jurors statement and any resulting denial of the jury trial guarantee. Overrides either Mansfield or Iowa

Answer 149

- State prosecutors in CO brought criminal charges against Petitioner, Miguel Angel Peña-Rodriguez, based on the sexual assault allegations. - After 3-day trial, the jury found petitioner guilty of unlawful sexual assault and harassment. - D wants new trial, new trial granted b/c juror made a clear statement that indicated he relied on racial stereotypes to convict a criminal D. (believed D was guilty b/c Mexican men are physically controlling of women and take whatever they want). - Judgment denying motion for new trial reversed.

Answer 150

The last step in a case in a trial court is Judgment A final judgment resolves all issues in a case EXCEPT: Atty’s fees EXCEPT: Motion for a new trial Rules 54 and 58 Judgment - the decisions that resolves all the issues in a case 2 things important Judgment has to be in a separate document If judge makes findings of law then judgment has to be in a separate document Judgment has to be entered into the record (this starts the clock running for an appeal)

Answer 151

there can be no appeal of an issue unless it was first presented to the trial court (except subj matter jdx)

Answer 152

- objections (evidence, jury instructions, findings) - > if you think it is important, object to it or you won’t be able to appeal it later. - statement of facts on summary judgment (state) - > must file this statement if you wanna rely on a fact you must have it in there. - statement of decision (court trial, state) - > must ask judge for this if you disagree - to appeal a jury verdict on the basis of insufficient evidence, you must make a JMOL, and renew it after the verdict. - to appeal a damages verdict as excessive, you must make a motion for a new trial on damages.

Answer 153

the timely filing of a notice of appeal in a civil case is a jurisdictional requirement; court of appeals does not have jurisdiction to hear a case if the filing is not done timely; within 30 days after the entry of judgment being appealed.

Answer 154

- Keith Bowles (defendant) was convicted of murder. - He had 30 days to file an appeal but did not do so. - He then filed a motion to reopen the window in which he could file an appeal. - The district court granted Bowles’s motion, but rather than 14 days, the court’s order gave him 17 days within which to file his appeal. - Bowles filed his notice of appeal within 17 days of the order, but not within 14 days as was required by Rule 4(a)(6). - On appeal, the court of appeals found that Bowles’s appeal was not timely and so it lacked jurisdiction to hear the appeal. - Court says must file appeal timely; within 30 days of entry of judgment being appealed. Deadline is jurisdictional.

Answer 155

28 USC 2107(c) – The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause. In addition, if the district court finds – (1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and (2) that no party would be prejudiced. the district court may, upon motion filed within 180 days after entry of the judgment or order or within 14 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

Answer 156

If judgment in your favor is appealed, you have 14 days after the notice filed by the adverse party to file a cross appeal challenging any rulings against you. (30 days to appeal if not U.S. Party)

Answer 157

Any order or decision that adjudicates fewer than all claims or fewer than all parties is not a final decision.

Answer 158

A decision that “ends the litigation on the merits and leaves nothing for the Court to do but execute the judgment.” (Effectively ends the litigation)

Answer 159

- Challenge to Muslim ban. P wants injunction, SCOTUS grants but narrows. - P wants clarification, but DC refuses. - Clarification not in the rule. Was not an order to grant, continue, modify, refuse, or dissolve an injunction

Answer 160

1. Of a partial final judgment under Rule 54(b) 2. As of right….granting, continuing. Modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions 28 USC 1292(a) (Preliminary injunctions) [all others are discretionary] 3. On certification 28 USC 1292(b) (any order, the judges think it should go up) 4. By Writ 28 USC 1651 (any order, abuse of power, unfixable damage) 5. Of a Collateral Order (case law) (ex: qualified immunity)

Answer 161

When an action presents more than one claim for relief – whether as a claim, counterclaim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.

Answer 162

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. The two most common: Mandamus – directing a lower court or official to do something Prohibition – directing a lower court or official NOT to do something Mandamus/Prohibition 1. An issue about the limits of judicial power (abuse of discretion, excess of jurisdiction) 2. Risk of irreparable harm (harm not otherwise remediable—typically damage will be done) 3. Decision was plainly wrong

Answer 163

Writs requirements (Writs are more demanding on irreparable injury and larger public interest. Writs less interested in balance of hardship) - Strength of legal claim (moving party) - “clearly wrong” - “Irreparable injury” - Rights lost if left to an appeal rather than a writ. - How significant is “public interest” - critical here (have to pick up public interest in one of those ways as the third factor to get writ) - Balance of hardships - ? Maybe in a close case Writs under State system - required - “Clearly wrong law” - Damage not correctable on appeal (right would be lost) - Some third thing (new and “important problem”, important case [big impact, novel question, controversial, vulnerable victims, need clarity]), Statutory Writ - Basically no standard for granting a writ of certiorari - If 4 Justices want to hear it, then we’ll grant Most SCOTUS emergency orders comes from All Writs act

Answer 164

Fighting Prop 8 in courts. CA SC denies. Ps bring to federal court. State officials do not fight, but proponents do. SCOTUS says no standing to enforce. Sets up the standard for preliminary injunction: 1. “Clearly wrong” standard, 2. Rights lost if left to an appeal rather than a write. 3. Significant public interest, 4. Balance of hardship (maybe in a close case). BUT also needs reasonably probability that four justices will want to heart it AND a reasonable probability that you’ll win

Answer 165

Cuomo’s covid religious gathering ban. - Irreparable harm and public interest to show a need for relief for an appeal to SCOTUS. - Communion needs to be personal so irreparable harm. - No harm to public interest to allow (theoretically). This shows that Catholics show need for relief. - Court changes the standard. Catholic had good case on rights gone, but bad case on serious question. Rule - Is it reasonably probable that 4 of SCOTUS would take case and 5 likely to grant?

Answer 166

Texas abortion law request to appeal to SCOTUS to vacate stays of DC. - Rule - application must make a strong showing that likely to succeed on merits and that irreparably injured absent a stay, and balance of equities favors it, and that stay is consistent with public interest. - Furthered Roman Catholic rule

Answer 167

- conclusively determines the disputed questions, - resolves important issues completely separate from the merits of the action; - has to be reviewed before proceedings terminate or else cant review. - A decision of a district court is appealable if it falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

Answer 168

Scotus ruled that COD allows Rule 12 and MSJ on qualified immunity cases to be appealed, even though COD supposed to be about right that evaporates if don’t have a ruling. Affirmative defense does not evaporate?

Answer 169

Stockholder derivative action. - Suing management of corp. - NJ has law that minority shareholders have to post bond if injunction issued but later dissolved. - Per COD, two issues (derivative and bond thing) are not related and adhere to requirements. So can interlocutory appeal.

Answer 170

1. “De Novo” – questions of law; court of appeals will decide legal issue for itself, with no deference to the trial judge 2. Clear error – findings of fact; this standard gives a lot of deference to trial judge 3. Substantial Evidence – jury verdict 4. Abuse of Discretion *Order granting a new trial is NOT appealable in a civil case*

Answer 171

“clear error” standard – not if the judge may have been wrong, not if court of appeals thinks the judge was wrong, only if court of appeals is firmly convinced the judge was wrong; judge was clearly wrong.

Answer 172

Boyd (defendant) and six other defendants were convicted of various federal drug trafficking and gang-related crimes. - Boyd moved for a new trial on grounds that federal prosecutors had knowingly allowed witnesses to give perjured testimony and had wrongfully withheld information relevant to the defense. - The federal district court granted the motion for a new trial. - The United States (plaintiff) petitioned the Supreme Court for review. - Sup Court did not intervene b/c they were not convinced judge was wrong, b/c P’s behaved in gross misconduct (knowing that witnesses were lying under oath about their using and dealing in drugs, the jury might reasonably have supposed that they were lying about the criminal activities of the D’s as well, also receiving favors for compensation of testimony going far beyond what happened).

Answer 173

Appeal prelim. Injunct. - Did not apply “serious questions” test, the DC made an error of law in denying prelim. Injunct. - AWR has shown likelihood of irreparable harm; - at least serious questions on merits of ESD; - and that the balance of hardships tips sharply in its favor; - and public interest. - Depends on whether we say if the judge abused his discretion by picking wrong rule of law. Then we will review the de novo. If abused discretion by making a factual finding that is clearly wrong, then the clear error standard.

Answer 174

On appeal Don't pay attention to judge - question of law (de novo) Do pay attention to judge - question of fact (clear error) ``` Plenary = De Novo Defential = Clear Error ```

Answer 175

People should get one bite at the apple. Any only one.

Answer 176

Complicated contract claim and claim for money already due. - Court says you can make final judgment on second claim for money owed. - Can ask trial judge for partial final judgment that disposes of a claim. TC must find 1. No bearing on rest of case and 2. “No just reason for delay” Both found here.

Answer 177

A party may not litigate a claim if it was a party to an earlier case 1. that arose out of the same transaction 2. involving the same parties 3. in which there was a final judgment 4. in which the final judgment was on the merits

Answer 178

After lost first suit, Manego subsequently brought this suit, substituting the Board of Selectmen with the Board of Trade as defendants, but retaining the Bank and Willard as defendants. - This time, Manego alleged antitrust violations stemming from the defendants’ alleged conspiracy to prevent the disco from competing with the rink. - Finding that the same facts formed the basis of Manego’s antitrust claim as formed the basis of his previous suit - Yes there are some different details, but this is basically about whether or not you were illegally denied a permit. - Same transaction and that what counts for claim preclusion (same transaction or series of transactions). Precluded.

Answer 179

1. nonparty agreed to be bound 2. pre-existing legal relationship (owner of same property, assignee) 3. was adequately represented (class action, trustee, guardian, etc) 4. Controlled the earlier case 5. Controls the 2nd case 6. BK, Probate, actions that settle for the world

Answer 180

A claim cannot be precluded if the previous litigant is a different party and there is no legal relationship between the current and past litigants. Does not fall under the 6 categories.

Answer 181

Airplane specs from FAA. - Sturgell wants Taylor to be precluded from proceeding with the claim. - Taylor wins and is not precluded b/c virtual representation is not an exception and litigants are not bound by a judgment to which they were not a party.

Answer 182

A Party can be precluded from litigating an issue in a case that was litigated in an earlier case: 1. If the issue is the same in the 2nd case as in the 1st 2. If the issue was actually litigated in the 1st case 3. If the issue was actually decided in the 1st case 4. If the decision on the issue was necessary to the outcome in the 1st case 5. The party to be precluded was a party in the 1st case

Answer 183

Claim - 1. Same Parties 2. Same Transaction 3. Legal claim was or could have been litigated 4. Final Judgment 5. On the merits Issue - 1. One party the same (party to be precluded) 2. Does not need to be same transaction 3. Legal issue is the same, was litigated and decided 4. Final Judgment 5. Decision on issue necessary to the outcome

Answer 184

Bernhard wants to recover the deposit on the ground that the bank was indebted to the estate for this amount b/c Mrs. Sather never authorized its withdrawal. - D alleges Bernhard is precluded by virtue of the finding of the probate court. - D wins b/c the issue as to the ownership of the money is identical w/ the issue raised in the probate proceed, and since the order of the probate court settling the executor’s count was a final adjudication of this issue on the merits. - P has brought the present action in the capacity of administratrix of the estate. - P claim precluded. Defensive non-mutual issue preclusion

Answer 185

P wants damages for asbestos, D denies liability. - P wants to use previous case. - Jury finds that it was unreasonable dangerous product and D’s knew this and didn’t put warnings and when they did, they were inadequate. - Don’t know if inadequacy of warning was decided in the first-place b/c don’t know whether that issue was decided b/c of particular facts. - If you can’t tell, can’t use it for issue preclusion. Hardy, et al. (plaintiffs) were exposed to asbestos and brought suit against various asbestos manufacturers, sellers, and distributors (defendants). - The district court entered a collateral estoppel order, finding that some issues in the plaintiffs’ case had been decided in the plaintiffs’ favor by a separate judgment for unrelated plaintiffs in a different asbestos case, Borel v. Fibreboard Paper Products Corp. (1973). - Offensive RULE: Collateral estoppel may not be applied to a claim where the previous judgment is ambiguous on key issues to be resolved in the claim.

Answer 186

Proxy statement was materially false and misleading in SEC case 4 factors to consider for offensive preclusion 1. Shareholders could not have joined SEC case 2. Parklane had full opportunity and incentive to litigate in SEC case. 3. the judgment in the SEC’s action was not inconsistent with any previous decision 4. Parklane was not presented with any procedural disadvantages in the first action that might affect the outcome of the second action. - RULE: in cases where a P could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of collateral estoppel would be unfair to D, a trial judge should not be allowed the use of offensive collateral estoppel. Court gets broad discretion though. - Offensive (Shore shareholders trying to prevent Parklane from relitigating proxy claim) Succeed.

Answer 187

1. Did P in 2nd case, sit on the sidelines in 1st case 2. Did D in the 1st case - Have a full opportunity to litigate? - Have an incentive to litigate? 3. Is preclusion inconsistent with other judgments 4. Does different process in 2nd case open prospect of different result

Answer 188

Is there claim preclusion? If there is, stop there If one of the requirements for claim preclusion is missing, ask if issue preclusion applies? If yes then, start w/ who is party to case and the ones to be precluded? Ask if offensive or defensive?

Answer 189

If only one party to the 2nd case was a party to the 1st The new party may prevent (preclude) the old party from imposing liability on the new with issues determined against the old party in the 1st case.

Answer 190

If only one party to the 2nd case was a party to the 1st The new party may impose liability on the old party with issues determined against the old party in the 1st case if the Parklane factors allow.

Answer 191

ONLY EXISTS IN DIVERSITY CASES What law must a federal court apply to a claim based on diversity? RULE: A federal court sitting in diversity must apply state substantive law, whether statutory or common law. If procedural issue, apply federal law.

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