All of em COPY Flashcards

Question

Final Judgement Rule §1291 | (3 elements + TEST)

Answer 1

Final Judgement Rule - right to appeal final judgements Purposes: * Efficiency: one appeal; interlocutory rulings may become irrelevant (e.g., party objects to admission of evidence but ends up winning the case); * saves time of appellate judges, * speeds up the resolution of the case. TEST: * After making this order, does the district court have anything left to do on the merits of the case? * Does not include determination of attorney fees, motion to recover costs, etc.. * Case is final when nothing remains to be done, except perhaps for the award of attorneys’ fees and costs. File Notice of Appeal in the DISTRICT COURT within 30 days of entry of final judgement.

Answer 2

Scope of discovery: * Not privileged, * relevant to the SM involved, * relates to the claim or defense of any party, * need not be admissible at trial if appears that it could lead to admissible discovery.

Answer 3

Claim that Bridgestone run-flats are defective; Marcus’s class involved BMWs with Bridgestone RFTs sold or leased in New Jersey where tires have gone flat and have been replaced. Marcus is NY resident; leased 2007 BMW; had four flat tires that failed but in two instances he ran over sharp objects NJ district court granted class cert for NJ subclass for various claims. **Standard: class cert – abuse of discretion.** **Class Definition (objective):** Must be clear and concise definition of parameters of the class. * Here, Marcus says intent was to include only owners and lessees of new BMWs purchased or leased in NJ from BMW dealerships with Bridgestone RFTs. But post hoc clarification is not sufficient. **Class Definition (ascertainability):** Must be able to identify class members without individual fact finding or mini trials. * Here BMW doesn’t know which cars it sold had run flat tires; even if a particular car came to the lot with RFT, may have left with different tires; and not clear which ones had gone flat and been replaced. * Need reliable, administratively feasible approach. Court allows Marcus to address the issue further on remand. Court suggests a due process concern about using affidavits from putative class members. **Numerosity:** so numerous that joinder is impracticable * No evidence of how many BMWs purchased or leased in NJ with Bridgestone RFTs have gone flat and been replaced. Thus, numerosity is not satisfied. **Commonality:** Common issues of law and fact exist: whether the tires are defective, duty to disclose defects, common claims. **Typicality: Met here** Plaintiff’s claims must arise from same event, practice or course of conduct giving rise to the claims * Marcus supposedly did little research before buying car but that doesn’t make him atypical; not a problem that Marcus leased only one model BMW with only one kind of RFT; unclear how Marcus’s issues will constitute major focus of litigation (unique defenses); neither side has shown how any defenses unique to Marcus will be major focus of BWM and Bridgestone. **Predominance:** Causation concerns – a tire can go flat for a variety of reasons; * illustrative is Marcus’s own experience; two of the tires would have been damaged under the circumstances even if they were not RFT

Answer 4

§1441 - Removal of civil actions §1442 - Officers or agencies §1443 - Civil rights cases §1444 - Cases against the United States §1445 - Non-removable actions §1446 - Procedure for removal §1447 - Procedure after removal generally §1448 - Process after removal §1453 - Removal of class actions §§1449-1455 - other removal actions

Answer 5

Purpose: prevent cost and expense of discovery if case is a nonstarter; avoid unfair pressure to settle Problem: crucial information is often in the hands of the defendant and cannot be obtained absent discovery Court is more liberal in accepting pleadings when π is pro se

Answer 6

* **ALWAYS apply FRCP!!!** * Rules Enabling Act: FRCP can't create different substantive rights, they can only deal with civil procedure. * Case is about state v federal rules of process. * **Question is whether the rule was important to the choice of forum at the outset.** * Again, FRCP cannot be used to circumvent the laws of a state. Here, ▲ is attempting to use the application of state rules to avoid liability. * If a plaintiff serves a defendant properly under the federal rules, the plaintiff can proceed with a state-law claim that requires a different method of service for establishing liability.

Answer 7

**Breast Implant Litigation** The MDL Panel rejected the suggested choices for judge by all parties and selected Chief Judge Sam Pointer, an experienced MDL judge and former member of the MDL Panel. Pointer apparently was not identified by any party.

Answer 8

Misjoinder: 1. Court, on motion or on its own, may add or drop a party or sever claims against a party. 2. A party is misjoined when the requirements of permissive joinder are not satisfied. 3. Not grounds for dismissal.

Answer 9

1. Pure questions of **law** – de novo 2. Question of fact by **judge** - affirm unless clearly erroneous (e.g., factual findings of a judge) – Rule 52(a) 3. Question of fact by **jury** - affirm unless no reasonable jury could have made that conclusion 4. **Abuse** of discretion (e.g., amendments to pleadings, most discovery issues) - affirm unless court abused its discretion

Answer 10

1. Complaint * Plausability * Sanctions 2. Parties * Permissive Joinder * Mandatory Joinder * Impleader * Intervention * MDL * Class Actions 3. Remedies * Compensatory Damages * Punitive Damages * Injunctions * Seizure of Assets

Answer 11

Interpleader: Any civil action of interpleader of this title may be brought in the judicial district in which one or more of the claimants reside.

Answer 12

1. State long arm statute: **First issue** to examine when looking at personal jurisdiction 2. Many such statutes provide that jurisdiction goes to the **limit of due process.** 3. Some have **narrower** wording but have been interpreted to go to the limit of due process. (e.g., Woodring v. Hall) 4. Some are **narrower** than the limit of due process and provide long arm jurisdiction only in certain kinds of cases (e.g., breach of contract, commission of a tort) 5. If the lawsuit is **not encompassed** by the state long arm statute, **that is the end** of the inquiry (unless a federal statute provides for nationwide personal jurisdiction)

Answer 13

Intervention (a) **Intervention of Right.** On timely motion, the court **must** permit anyone to intervene who: (1) is given an **unconditional** right to intervene **by a federal statute**; or (2) claims an i**nterest relating to the property or transaction** that is the subject of the action, and is so situated that **disposing of the action may** **impair** **or impede** the movant's ability to protect its interest, **unless existing parties adequately represent** that interest. (b) **Permissive Intervention.** (1) In General. On timely motion, the court **may** permit anyone to intervene who: (A) is given a **conditional** right to intervene **by a federal statute**; or (B) **CQLF** (2) By a Government Officer or Agency. (3) Delay or Prejudice. In exercising its discretion, the **court must consider** whether the intervention will unduly **delay or prejudice** the adjudication of the original parties’ rights.

Answer 14

Facts Jerome EM appeals termination of parental rights to his son Greg; argues that trial court should have applied claim or issue preclusion Gail and Jerome are parents of Greg; never married; he contributed nothing to costs of pregnancy or birth; paid no child or other support When Greg was 3, Jerome petitioned for adjudication that he was father; occurred in 1997; afterwards, Jerome still didn’t make payments, provided no emotional support, didn’t visit or communicate except one conversation with guardian ad litem Since Greg was one, he has lived with Gail and Roger; they filed petition to terminate Jerome’s parental rights and Roger petitioned to adopt Greg; testimony showed past threats, violent conduct regarding his wife and children during his first marriage. Court found that Jerome had abandoned Greg and was an unfit father; court terminated parental rights Holding Jerome argued that prior paternity determination concluding he was father and ordering periods of placement with Jerome prevented termination Specifically, he argued claim preclusion and issue preclusion Here, petition to terminate Jerome’s parental rights was not an attack on the judgment that Jerome was Greg’s biological father; rather, it was a claim that, in Greg’s best interests, Jerome’s parental rights should be terminated; thus, claim preclusion did not bar the suit. Issue preclusion applies only to actual litigation of the same issue; it is ultimately a discretionary call. Only issue determined in first case was whether Jerome had legal right to parent him; court didn’t determine whether Jerome had abandoned Greg or failed to assume parental responsibility for him

Answer 15

* Twombly is applicable to all such actions regardless of subject matter. * Two part test: 1. The principle that a court must **accept as true** all allegations in a complaint **does not apply** to legal **conclusions** (e.g., negligence, conspiracy) 2. Only a claim that states a “**plausible**” claim for relief **will survive** a motion to dismiss. The court must “draw on its judicial experience and common sense.”

Answer 16

Disclosure * 90-120 Days. * Concludes with discovery conference (Rule 16) and discovery order. * No other discovery takes place during this time. Formal discovery process. * May last months to years. * Use of all discovery devices. Pretrial * Disclosure of expert information describes in Rule 26(a)(2). * Expert deposition may take place. * Disclosure of trial witnesses and docs described in Rule 26(a)(3). * Parties may seek admissions on key issues in Rule 36.

Answer 17

A. §1446 - Removal: 30 days after receipt of complaint B. §1447 - Remand: 30 days after removal C. Time Limit on Removal for diversity 1. One year 2. Time limit is not applicable if plaintiff is guilty of bad faith (purposefully delaying a key act, such as dismissing a non-diverse defendant, until after the one-year period) (28 USC §1446(c)(3)(B)) =\> International Paper example! 3. Contrast federal question: if a federal cause of action is added during the case, that can create federal question jurisdiction and justify removal even after more than a year.

Answer 18

1) Federal law creates an action: Case is about violation of a federal law. (Article III "arising under" federal statutes, US Constitution, treaties, federal regulations) 2) State law where a federal question is arguably a major component - Bracken, Gunn Bracken v. Matgouranis (removal to fed court, wacky ass attempted murder, extortion case. ▲ thought π would assert absolute privilege so said refusal would be violation of free speech and removed to fed court.)

Answer 19

* (Souter writing for majority) For anit-trust cases conclusory statements of claims will no longer survive a motion to dismiss. * Instead, a complaint must contain enough facts to raise a reasonable expectation that the discovery process will reveal relevant evidence to support the claim.

Answer 20

Judgement on the Pleadings After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings. Does NOT involve evidence.

Answer 21

1) Can emerge at any time. 2) No 1 year requirement. 3) No forum ▲ rule. 4) 30 days to remove. 5) 30 days to remand. 6) ▲ 's burden of showing federal jurisdiction.

Answer 22

* res judicata * no collateral estoppel unless issue is settled

Answer 23

This case takes a very narrow approach to intervention. The businesses and homeowners’ associations had an economic interest in the challenge to the city ordinances. Yet, the court denied not only intervention as of right, but also permissive intervention. With respect to intervention as of right, the court found that the **interests were too abstract** and were shared by too many businesses in the community. The court also found that the movants’ interests were **adequately represented** by counsel for the City of Dallas. With respect to permissive intervention, the court reiterated that the movants’ interests were **adequately represented.** It further found that movants’ participation would **needlessly delay** the case, and that the economic arguments that the movants planned to make were not legally relevant. The court, however, allowed movants to appear as ***amici* for the sole purpose of submitting briefs.** An *amicus* is not a party, but rather only a “friend” of the court; an intervener becomes a party to the case. In *Johnson*, the movants were only allowed (as *amici*) to file briefs. ####

Answer 24

1. Document Requests 2. Depositions 3. Interrogatories 4. Request to admit 5. Physical/Mental Exams 6. Privileges 7. Work Product 8. Sanctions

Answer 25

Pro se π given priority. π choice given priority unless not in home state or not in a place where significant events that gave rise occurred. TEST for deciding transfer: 1. **π choice** of forum; 2. **Δ preference**; 3. where the claim **arose**; 4. the **convenience** of the **parties**; 5. **convenience** of **witnesses**, but only to extent that witnesses may be unavailable in a fora; 6. the **location of records** and such that could not be produced in the alternative forum; 7. **enforceability** of the judgement; 8. **practical considerations** to make the trial easy, expeditious or inexpensive; 9. relative **court congestion** in competing courts; 10. the **local interest** in deciding local controversies at home; 11. **public policies** of the fora; 12. the **familiarity of the trial judge** with the applicable state law.

Answer 26

1) Determine if removal was **timely**. 2) Look at **well pleaded complaint**. Does federal law create the cause of action? 3) If state law where federal law is a component of the claim or defense a. **Not** sufficient if the federal question arises only as a **defense** or a response to a defense (e.g., Bracken) b. **Test** for whether federal question is embedded in a state law claim (not just merely a defense part part of plaintiff’s case) involves a consideration (under **Gunn**) of whether the federal issue is: i. necessarily raised ii. actually disputed iii. substantial (to the federal system as a whole) iv. capable of resolution in federal court without disrupting the federal-state balance approved by Congress (looks at both federal and state court scenarios) 4) **Analyze diversity jurisdiction.** Has a claim been stated against a non-diverse ▲? (Fraudulent joinder)

Answer 27

The Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs. pleadings and motions, and the practice and procedure of the district courts of the US in civil actions. Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury.

Answer 28

* Joinder of parties under Federal Rule of Civil Procedure 20(a) does not require that every question of law and fact be common to every party. * **T/O** * **Common question of fact** * Shows how liberal joinder can be Allowed the joinder of seven plaintiffs alleging a variety of constitutional violations by the sheriff of St. Charles Parish, Louisiana. Although an important aspect of all of the claims (excluding those of Wilson) was harassment and termination based on support of the defendant’s opponent in the election, only some of the plaintiffs claimed race discrimination. And Wilson’s claims were not similar to those of the other plaintiffs, as the court itself acknowledged.

Answer 29

Physical and Mental Examinations Must be directly relevant to the case.

Answer 30

Rule 201 Portland is in Oregon

Answer 31

Federal jurisdiction over a state law claim will lie if the federal issue is (aka Federal Question TEST): 1) necessarily raised, 2) actually disputed, 3) substantial (important to the federal system as a whole) and, 4) capable of resolution in federal court without disruption of the federal-state balance

Answer 32

1. Over Parties * Personal Jurisdiction 1. Specifc 2. General 3. Property 4. Tag/Transient 2. Over Subject Matter * Diversiy * Federal Question

Answer 33

Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda, and personal recollections.

Answer 34

(a) **Required Disclosures**. Initial Disclosures required without court order. Evidence supporting the party’s claims. * Info of everyone who is likely to have info relative to the case. Only witnesses that help your case. * Docs in support. * Damage calculation. * Insurance agreement. (b) (3) **Work** **product** not discoverable (d) **Duty** to supplement - continuing if new things emerge (g) **Signatures** - When you sign a discovery paper, you are certifying the accuracy \> subject to sanctions via Rule 37. (b) (1) **Proportionality** * considering the importance of the issues at stake in the action, * the amount in controversy, * the parties’ relative access to relevant information, * the parties’ resources, * the importance of the discovery in resolving the issues, * whether the burden or expense of the proposed discovery outweighs its likely benefit

Answer 35

1. Federal v. State * Erie * Guaranty Trust * Byrd * Hanna * Standard of Review 2. Which State?

Answer 36

* Allows interlocutory review of a decision granting or denying class certification; * discretionary on the part of the appellate court; * no requirement that the district court certify the issue for appellate review.

Answer 37

Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (c) Catch a lie = get fees paid

Answer 38

* **Privileges can be waived** (directly or through the act of disclosure) * **Some exceptions for public policy** (e.g., attorney can report if client told her that he is getting ready to murder someone) * Against self incrimination (5th Amendment) * Attorney-client * Doctor patient * Priest-penitent * Psychotherapist * Husband wife * Some places: conversations at Alcoholics Anonymous meetings * Purpose is to assure free flow of information without deterrence; for instance, a lawyer needs to know the true facts to figure out what to do (or in case of 5th Amendment to protect a constitutional right to remain silent) *

Answer 39

Impleader (a) ▲ may implead (1) By motion and with court's leave if **15+ days** after original answer, a ▲ (3Pπ) may... sue ... a nonparty who **is or may be liable** to it for all or part of the claim against it. (2) The 3P▲: (A) must assert any **defense** against the 3Pπ claim under Rule 12; (B) **must** assert any **counterclaim** Rule 13a, and **may** assert any **counterclaim** Rule 13(b) **or** any **crossclaim** Rule 13(g); (C) 3P▲ Can mirror ▲ defense in case 1 (D) may also assert against the π any claim arising out of the **T/O** that is the subject matter of the plaintiff's claim against the third-party plaintiff. (3) π can assert ▲'s claim against 3P▲ as long as T/O (4) Any party may move to strike the third-party claim, to sever it, or to try it separately. (5) 3P▲ can implead (b) π may implead against counterclaims Rule 14: a defending party may sue “a nonparty who is or may be liable to it for all or part of the claim against it.” The new party is allegedly liable to the defendant if the defendant is found liable. A sues B, B brings in C **Policies:** 1. promotes efficiency 2. prevents inconsistent verdicts Without impleader, in A v. B, B would have to defend without the presence of C, even though C would be liable to B if B were liable to A. B would have to sue C separately, creating inefficiency. Plus, if the first jury found A’s case to have merit, the second jury could rule against B and in favor of C on the ground that A’s case lacks merits, even though A’s case was previously found to have merit. **Claim must be contingent or derivative of the main claim:** * **Indemnification**: Insured sued in an auto accident case may implead the insurance company that has agreed to insure against such claims * **Contribution**: joint and several liability for torts (plaintiff smoked two brands of cigarettes and sued one company after developing cancer) * **Subrogation**: one person stands in the shoes of another for purposes of pursuing a claim – insured party sues his insurance company for injuries suffered in a car accident; insurance company can implead the driver whose alleged negligence caused the accident * Liability of the defendant to the plaintiff **need not be the same theory** as the liability of the third-party defendant to the third-party plaintiff * **Impleader is permissive:** Defendant might decide to sue nonparty in another forum in a separate case

Answer 40

1. Shortcut where there is no need for a trial because result is clear based on pleading and supporting evidence. 2. 56(a): Summary judgment if no genuine dispute as to any material fact and movant is entitled to judgment as a matter of law 3. Can have partial summary judgment (e.g., on one of several claims) 4. In theory can be filed at any time until 30 days after close of discovery, but usually the moving party will wait until some or all discovery has occurred 5. 56(d)(2): can deny or continue motion for summary judgment to permit discovery

Answer 41

§1390 - Scope §1391 - Venue generally §1397 - Interpleader §1404 - Change of venue §1406 - Cure of waiver of defects §1407 - Multi-district litigation (MDL)

Answer 42

Interlocutory Decisions Basically an immediate appeal during trial that does not delay proceedings unless judge approves. (a) (1) - courts of appeals have JD over orders about injunctions (granting/denying etc) (b) - **Certification** - judge makes non-appealable order but believes allowing appeal would advance litigation (controlling question of law), he can certify appeal and court of appeals can decide to hear it immediately.

Answer 43

1. Plaintiff: plaintiff claimed that her deceased husband was injured by exposure to Celotex’s asbestos. Celotex denied the allegations and sought summary judgment. Court held that where the *nonmoving party* will bear the burden of proof at trial, the moving party can discharge its initial burden by “showing – that is, pointing out to the district court – that there is an absence of evidence to support the nonmoving party’s case.” 2. So the defendant (Celotex) only needed to point to the absence of evidence because plaintiffs have burden of proof. 3. Situation is different if the moving party does bear the burden of proof at trial. Then it must affirmatively come forward with evidence.

Answer 44

1) Diversity 2) Federal Question 3) ▲ is United States or agent or officer - §1442 4) Civil Rights violation - §1443 5) Admiralty 6) Patent - §1338(a)

Answer 45

Class Actions C definable class E judicial economy N numberosity C commonality T typicallity A adequacy B 23(b) - class action may proceed if... 1) separate rulings risk 2) outcome applicable to all 3) common issues predominate * Do NOT analyze PJ or SMJ * Class action has to be superior to non class Class Certification 1. Threshold Requirements a. **Definable** **class** (for notice, distribution of claims) i. Objective ii. (some courts) Ascertainability b. A **representative** who is a **member** of the class c. Claim that is **not moot** (Rocky) 2. Rule 23(a) requirements (must satisfy all four) a. **Numerosity** - lots of people (30+) b. **Commonality** - CQLF c. **Typicality** - Rep is typical of the class d. **Adequacy** of representation both i. Representative ii. Counsel 3. Rule 23(b) - if 23(a) met then class action can be maintained if: (1) separate actions would risk (A) inconsistent rulings (B) individual rulings would be dispositive to other members (2) Party opposing's actions apply to all members to that outcome would be applicable to all (3) (catchall – usually for damages): **common issues predominate** over individual issues and a class action is superior to other ways of resolving the

Answer 46

The falsehoods in the case involved (i) plaintiff’s involvement in other lawsuits and (ii) his wife’s ownership of other stocks. The court acknowledged that the issues were of “marginal relevance” to the suit, but dismissed the representative and class counsel for lack of integrity.

Answer 47

Agency Subsidiary Test Fail: does the sub perform tasks that if it **failed** to, the parent would have to? (majority rejects) Agency Subsidiary Test: Is the sub so **dominated** by the parent that it is in effect, an **alter-ego**?

Answer 48

Summary Judgement (courts discretion) * Weed out cases in which we do not need a trial. * **Court looks at evidence**. Evidence supplied by parties in written form. Materials executed under oath. * affidavits * declarations * depositions * answers to interrogatories * Admissions * If Δ **fails to deny** something in the pleadings * Must show two things: * **No genuine dispute on a material fact**. * She is **entitled to judgement as a matter of law.**

Answer 49

Jury Selection * Court may examine or permit parties to examine * 3 peremptory challenges allowed per §1870 * during trial or deliberation, can excuse juror for good cause

Answer 50

(a) no more than **10** depositions (c) Exam/Cross, Record, Objections, Written Questions (1) Examination and Cross-Examination - **officer**, **oath**, **recorded** (2) **Objections** - noted, but continues. Only instruct not to answer for privilege, order, or motion. (3) **Written** Questions (d) Duration; Sanction; Motion to Terminate or Limit (1) **1 day of 7 hours** (2) **Sanction** for fees and expenses for delay (3) **Motion** to terminate or limit on bad faith examination + expenses

Answer 51

Challenge to peremptory strikes in a civil suit based on Batson (which involved criminal context) Plaintiff was Hispanic; peremptories used to strike two Hispanic jurors Plaintiff argued: racially motivated strikes Lawyer said he preferred younger to older and men to women and admitted to having some concerns about the struck juror being Hispanic. Lawyer who made strike need only articulate a legitimate nondiscriminatory reason for the strike; the finding of no intent to discriminate by the trial court is a question of fact, reversible only if clearly erroneous under Rule 52(a).

Answer 52

§1441(b)(2) - In diversity cases, forum ▲ cannot remove to federal court i.e. ▲ cannot remove if he is a citizen of the state in which the suit was brought.

Answer 53

1. Unlike criminal sanctions, punitive damages are awarded to the π not the state, over and above any proved damages. 2. Ordinarily available ONLY when the Δ behavior is so outrageous or malicious that it fairly warrants a criminal-like sanction. 3. Sufficient evidence to justify an award of punitive damages? question of law for a court to decide 4. Amount of punitive damages? discretion of the jury.

Answer 54

* 7 hour limit, witness gets to review transcript, no more than 10 depositions (a). Rule 30. * Perpectual Testimony e.g. terminal illness video. Rule 27 * Before whom taken, authority to administer, oaths, etc. Rule 28 * Stipulates disclosure process. Rule 29.

Answer 55

a. Asahi: O’Connor stream of commerce plus (not specifically rejected by majority) b. Asahi: Brennan stream of commerce/foreseeability (not specifically rejected by a majority, but the McIntyre Kennedy plurality doesn’t support it and arguably Alito and Breyer don’t support it either) c. McIntyre: Kennedy plurality’s test of whether there was an intent to submit to jurisdiction (or as Ginsburg puts it, whether defendant “consented” to jurisdiction d. McIntyre: Alito/Breyer: apply specific contacts approach without a special test for stream of commerce e. McIntyre: Ginsburg’s test of whether the defendant purposefully availed itself of the US market generally, thus making personal jurisdiction permissible in any state where injury occurred

Answer 56

Any order that is not a final judgement (Exception to final judgement rule): Grant for new trial etc. By **statute**: * §1292(a): * Allows interlocutory appeal of orders - injunction (grant, review, modify), etc. * §1292(b): Can appeal if trial judge finds: * Issue is a controlling issue of law AND substantial ground for difference of opinion * AND court of appeals agrees to hear it. Under FRCP: * Rule 23(f): * Allows Court of Appeals discretion on an order granting/denying certification of **CLASS ACTION.** * Rule 54(b): * Only comes up with **MULTIPLE claims or MULTIPLE parties.** * District Judge can expressly enter final judgement as to one or more of those parties or claims. * Judge must find there is no just reason for delay. * π sues Δ, Δ files counterclaim, Judge files ΣJ on counterclaim. If DC finds no reason for delay, counterclaim may be appealed. * Collateral Order Rule. * Must show: * Important issue, separate from the merits. * Court order completely resolves that issue. * Issue is unreviewable if we have to wait for final judgement. * If these three are true, court of appeals has discretion to hear the appeal.

Answer 57

1. Internet is a source of confusion for personal jurisdiction; **every case must be examined closely** based on its facts 2. **Passive** web site alone is **not** **enough** (Cybersell, Bensusan) 3. Something **more than passive** web site (e.g., putting items on a server in the forum) may be **enough** (**CompuServe**) 4. Use of the internet for the **transaction** or matter at issue **may** demonstrate strong contacts for purposes of specific jurisdiction 5. Word of caution regarding general jurisdiction: under the old approach to general jurisdiction (continuing and systematic contacts plus due process) lots of internet activity in the state (e.g., lots of hits from the state) could satisfy general jurisdiction for a corporation; **but after Daimler the test is whether a corporate defendant is “at home”**

Answer 58

relevance and proportionality; information doesn’t have to be admissible to be discoverable

Answer 59

a. Applies to **all pleadings**, other papers signed by attorney (there are also separate sanctions provisions in the discovery rules) b. **Signature** constitutes representations: (1) no **improper** purpose; (2) contentions are **warranted** **by** existing **law** or non-frivolous argument for extending law; (3) **factual** **contentions** **are warranted** or likely will be after reasonable investigation; (4) factual **denials** **are** **warranted** based on evidence or reasonably based on belief or lack of information c. Sanction must be **least severe** sanction to achieve the purpose of Rule 11 (Seawright)

Answer 60

1) Cases involving a federal question. 2) Diversity cases.

Answer 61

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. The Seventh Amendment continues a practice from English common law of distinguishing civil claims which must be tried before a jury (absent waiver by the parties) from claims and issues that may be heard by a judge alone. It only governs federal civil courts and has no application to civil courts set up by the stateswhen those courts are hearing only disputes of state law. Where an issue applies to combined common law and equitable proceeding, the overlapping issue must be tried by a jury.

Answer 62

1. Percentage * Divorcing it from time spent 2. Lodestar * Reasonable hourly rate x number of hours x a possible multiplier 3. Contingency Fee - % of recovery if win, zero if lose American Rule - each party pays legal fees. * exceptions: by statute, or sanctions. Fee Shifting - incentive for taking inj/decl cases where there is no money

Answer 63

Multi-District Litigation (MDL) 1. **Pretrial** purposes only 2. Includes both **class actions and individual** cases 3. Only applies to cases in **federal** court 4. Venue and personal jurisdiction rules **don’t** apply 5. **Judge** selected does not need to have any of the pending cases 6. Must be one or more **CQF** 7. MDL decision is made by **special court** – Judicial Multidistrict Litigation Panel (7 judges; none from same circuit) - Appoints **ONE judge** 8. **Initiated** by a party or MDL panel

Answer 64

1. Power of the court over the subject matter; federal courts are courts of limited jurisdiction (and most federal claims can be pursued in state court) 2. Unlike personal jurisdiction, subject matter jurisdiction **cannot be waived** 3. **Defects** in removal can be waived (if no motion to remand within 30 days) (28 USC §1447(c)) Waivable defects: 1. §1441(c)(2) - All defendants involved in the federal claim must join 2. §1441(b) - Forum defendant rule 3. Late removal (waited more than 30 days to remove) 4. **Burden** of proof for subject matter jurisdiction is on the party asserting federal court jurisdiction

Answer 65

**REAL PARTY IN INTEREST** * Like standing; only the person who has the **actual claim** can sue * Certain **legal relationships qualify** (e.g., executor, administrator, guardian, bailee) * Person who owns the claim can **ratify** someone else’s ability to bring the claim (Pat Robertson) * Naghui v. Intercontinental Hotels

Answer 66

Document requests

Answer 67

Permissive Joinder of Parties (v Mandatory, Rule 19) (a) Who May Join or Be Joined. π/▲: * same **T/O** * **CQLF** Purposes of Permissive Joinder 1. Promote efficiency 2. Avoid multiple, duplicative, and sometimes inconsistent suits

Answer 68

District court must sever and remand non-removable claim and keeps the rest (Brown v. K-MAC)

Answer 69

1. Jury Trial 2. Jury Selection 3. Rule 50 4. Rule 59 5. ADR

Answer 70

The Second Circuit held that the district court erred in consolidating for trial 48 plaintiffs claiming injuries from exposure to asbestos. The court explained that there were numerous differences among the plaintiffs (including different work sites, occupations, exposure periods, disease types, etc.), and expressed concern about the jury’s ability to sort out all of the evidence and keep track of each plaintiff’s case. The court sent a very strong message that **efficiency could not be purchased at the expense of fairness to defendants.** If adopted by other circuits, the *Malcolm* approach would clearly limit the ability of Rule 42 consolidation as an aggregation device. The dissent by Judge Walker suggests that reasonable minds can differ on the result.

Answer 71

Venue, Scope (a) geographic specification (b) exclusion of admiralty cases (c) does not govern removal from state to federal, but does govern transfer between districts of cases removed

Answer 72

Dispute over Monet painting, previously owned by plaintiff; discovered missing after WW I, subsequently purchased by Baldinger from third party defendant Wildenstein. DeWeerth discovered that Baldinger possessed the painting in 1982; filed diversity action to recover it. After bench trial, court held that DeWeerth had superior right to painting; reversed by 2d Cir because DeWeerth had failed to show reasonable diligence in pursuing the painting (1987). Rule 60(b) motion was filed by DeWeerth in 1991 under (6), relying on NY state case (NY Ct App 1991) holding that in cases involving stolen art NY limitations law did not require showing of reasonable diligence as long as owner made demand on possessor within a reasonable time after learning of possessor’s identity; SOL began to run only after demand upon possessor and possessor’s refusal to comply. Second Circuit held: (6): deals with extraordinary circumstances, extreme hardship District court concluded that the intervening decision was an extraordinary circumstance; NY Ct App expressly stated that 2d Cir’s prior ruling was wrong (unanimously); DeWeerth would have prevailed under NY Ct App rule; district court said that interest in finality was outweighed by need to prevent an extreme injustice. But in the Second Circuit’s view, the district court was wrong. Erie does not authorize reopening a case that has been closed for several years to get benefit of newly announced state court decision.

Answer 73

Summary Judgement 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.** * ▲ doesn't have to put up evidence, only has to show π didn't meet burden of proof by a preponderance of the facts.

Answer 74

1. District court must certify. 2. Must go to court of appeals within 10 days after certification. 3. Appellate courts must accept jurisdiction. Requirements: 1. Controlling question of law; questions of fact don’t qualify 2. Substantial ground for disagreement: issue is complicated or courts are split. But even a question of first impression may not qualify if the answer is easy. 3. Resolution will materially advance litigation. Focus is on efficiency: whether interlocutory review would ultimately result in a savings of time and expense for court and parties – e.g., avoid a trial or substantially curtail it.

Answer 75

A civil action may be brought in— (1) a judicial district in which **any defendant resides, if** **all defendants are residents** of the State in which the district is located; (2) a judicial district in which a substantial part of the **events** or omissions **giving rise** to the claim occurred, or a **substantial** part of **property** that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, **any judicial district** in which **any defendant** is subject to the court’s **personal jurisdiction** with respect to such action. For transfers under §1404 and §1406 - must do venue and PJ test for transferee district.

Answer 76

**COUNTERCLAIMS** **1. (a) Compulsory: T/O** that is the subject matter of the opposing party’s claim”; USE IT OR LOSE IT **2. (b)** **Permissive:** unlimited scope; generally no preclusion problem.

Answer 77

Title VII suit arguing that employee insurance benefits and maternity leave regulations discriminated against women; on partial summary judgment court held policies violated Title VII; court did not order any of the relief requested – injunction, compensatory, exemplary damages, attorneys’ fees; district court and court of appeals said appeal was proper under Rule 54(b) **Court held:** * Complaint advanced only a single legal theory; Rule 54(b) only applies to multiple claims * Not 1292(a)(1): no denial of an injunction sought by the loser * Not 1292(b): no application within 10 days; court of appeals thought appeal was under 1291, not 1292(b), so no indication that appellate court approved 1292(b)

Answer 78

* Unilateral activity is not enough for PJ * foreseeability is not enough; must look at the conduct of the defendant

Answer 79

Facts First suit: Aug. 1987 suit by Murray, an atheist (daughter of famous atheist Madalyn O’Hare) and other plaintiffs in federal court alleging a pattern of having to refuse to take a “god” oath and then being excluded from jury duty. Part of suit was based on alleged violation of Establishment Clause. District court dismissed for failure to state a claim and 5th Circuit affirmed. Second suit: Murray declined to take pre-voir dire oath for Texas jury duty because it referenced God. Murray was offered opportunity for affirmation in lieu of an oath but refused that as well. Claimed an affirmation was just as religious as an oath. Judge disagreed, and jailed her for contempt. She sued under 1983 claiming Free Exercise rights were violated. District court held earlier case was res judicata. Fifth Circuit, after the first case, held in Ferguson that requiring a witness to take an oath or affirmation violated Free Exercise Clause. Claim preclusion was not applicable: parties were not identical; Herman was not a defendant in the first suit and was not in privity with a defendant Not issue preclusion: Need (1) issue at stake to be identical to one litigated; (2) issue was actually litigated in prior litigation; (3) determination of the issue in prior litigation was a critical and necessary part of judgment in earlier action. Test was not met here because this claim is Free Exercise, not Establishment Clause. Also, issue preclusion would not apply because Ferguson is a change in the law. Law of the case does not apply; different cases

Answer 80

1. Hanna - Is there a federal rule or procedural statute that governs? a. YES - it governs (Erie) b. NO - is the issue substantive or procedural? i. . Procedural - FRCP ii. . Substantive - State statute and common law 2. If unclear: Guaranty - does it effect the outcome? Apply state law. But consider... 3. If still unclear: Byrd - is there a countervailing federal interest? Apply federal.

Answer 81

**WORTHLESS.** ## Footnote Rule 33

Answer 82

1) Parties must have complete diversity at the time of filing **AND** time of removal. Change in facts after removal will not defeat diversity. 2) §1446(c)(2)(A) - amount stated in the pleading used, or notice of removal may state if initial pleading was for non-monetary relief, or state law limits amount of relief.

Answer 83

If after removal the π seeks to join additional ▲'s whose joinder would destroy subject matter jurisdiction, the court may **deny** joinder, **or** permit joinder and **remand** the action to the State court.

Answer 84

1. American Rule: parties must normally pay their own attorneys, win or lose 2. Plaintiffs can often negotiate contingent fee contracts 3. Some statutes provide for fee shifting 4. Two methods for calculating fees: * Percentage of fund: some percentage of fund recovered without regard to number of hours invested * Lodestar: number of hours times reasonable hourly rate (and sometimes a multiplier for exceptional cases) 5. Some courts use percentage of fund but with lodestar cross check

Answer 85

Grounds for new trial: Rule 50 - insufficiency of evidence Rule 59 - Insufficiency of evidence, excessive/inadequate damages, jury misconduct, error by the court etc.

Answer 86

(c) Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: * accord and satisfaction; * arbitration and award; * assumption of risk; * contributory negligence; * duress; * estoppel; * failure of consideration; * fraud; * illegality; * injury by fellow servant; * laches; * license; * payment; * release; * res judicata; * statute of frauds; * statute of limitations; and * waiver. (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

Answer 87

1. If after service of process a defendant fails to answer complaint, court can enter a default judgment 2. First step: Enter a default under Rule 55; only the court can enter a default judgment 3. Under Rule 55(b)(2), party must be given written notice at least 7 days prior to the hearing 4. Relief available under 55(c) for good cause and may be set aside in some circumstances 5. Default judgments are disfavored

Answer 88

JD exists if: 1. ▲ **purposefully availed** itself of privilege of conducting activities in forum state 2. Claims must arise out of or relate to the defendant’s **forum conduct** 3. Exercise of jurisdiction must be **reasonable** For multiple ▲'s, must analyze separately.

Answer 89

**Non-Mutual Collateral Estoppel** * Due process bars binding a party that was not a party in the earlier case. * It is possible, after Parklane Hosiery, to bind a party (both offensively and defensively) in a non-mutual context. **Defensive:** * A v. B (officer of Vitamin Water) for alleged fraud by the company about the health benefits of Vitamin Water * B wins; jury finds no fraud * A v. C (another officer of Vitamin Water) for the same alleged fraud by the company * C can argue that A should be barred from relitigating the issue. Issue is within the court’s discretion, looking at fairness (whether A had a full and fair bite at the apple). **Offensive:** * A v. B (officer of Vitamin Water) for alleged fraud by the company * B loses (there was indeed fraud) * C v. B (officer of Vitamin Water) for alleged fraud by the company * C can argue that that B is collaterally estopped from arguing that there was no fraud. Issue is within the court’s discretion, looking at fairness (whether B had a full and fair bite at the apple). **Not Allowed:** Example: * A v. B (officer of Vitamin Water) for alleged fraud by the company * A loses (there is no fraud) * C v. B (officer of Vitamin Water) for alleged misrepresentation by the company * B can’t assert A’s loss against C because C wasn’t a party to the earlier case * Here, C did not have any bite at the apple. Example: * A v. B (officer of Vitamin Water) for alleged fraud by the company * A wins (there is fraud) * A v. C (another officer of Vitamin Water) for alleged fraud by the company * A can’t assert B’s loss against C because C didn’t have a bite at the apple

Answer 90

Black focuses on the requirement of vigorous representation where class representatives were unprepared and did not understand their roles or the allegations in the case. Instead of dismissing the representatives, the court put the burden on class counsel to get them up to speed. * set up sanctions if counsel didn't fix

Answer 91

* Tiesler* is a straightforward application of Rule 14 (impleader) * Joint and several liability is sufficient for impleader. A minor plaintiff who was injured by denatured alcohol sued the paint store (for failure to comply with federal labeling and packaging requirements), and the paint store claimed that, if it were held liable, it would be entitled to contribution from the other youth (the third party defendant) whose negligence (according to the paint store) allegedly caused the injuries. As this case shows, while a joint tortfeasor context does not establish a basis for Rule 19 dismissal, it does justify an impleader action at the option of the defendant.

Answer 92

* motions for orders that can be granted without waiting for a response from the other side * Generally, these are orders that are only in place until further hearings can be held, such as a temporary restraining order. * Typically, a court will be hesitant to make an ex parte motion. This is because the Fifth Amendment and the Fourteenth Amendment guarantee a right to due process, and ex parte motions--due to their exclusion of one party--risk violating the excluded party's right to due process.

Answer 93

**TRANSFER OR KEEP** Change of venue when venue is proper: (a) for **convenience** and in the **interest of justice**, transfer to any district it could have been brought or that **all parties consent** to * If all parties consent then PJ and venue concerns are waived * A transfer request based on a **FORUM SELECTION CLAUSE** = no need for §1391 or PJ (PJ is fulfilled by consent to FSC)

Answer 94

1. For corporations: no longer “continuous and systematic” contacts plus due process; test is now whether the corporation is “at home” – which generally means place of incorporation and principal place of business a. Daimler FN 19: It is arguably possible, to be at home elsewhere (for instance, if most of sales take place in one state) i. comparative analysis; BSNF (not at home in MT: BNSF has only about 6% of its total track mileage in MT, employs less than 5% of its total workforce there, and generates less than 10% of its total revenue in the State) b. The “at home” test does not require a separate due process analysis c. An open issue is whether the presence of an agent for service of process can substitute for being “at home” d. For individuals, general jurisdiction can be established by domicile, appearance, or tag jurisdiction e. Waiver applies (e.g., VW corporate didn’t contest personal jurisdiction in World-Wide Volkswagen)

Answer 95

Facts Robert Sopha was exposed to insulation with asbestos while working as an insulator from 1951-1995 Prior to 1987 diagnosed with pleural thickening (non malignant condition) involving lining inside chest cavity March 1987 he and wife filed complaint in state court Milwaukee County for damages. He died in Nov. 1997, so case was amended to include a wrongful death claim. Defendant moved to dismiss based on 3 year SOL; plaintiffs moved to dismiss and action was voluntarily dismissed “on the merits with prejudice.” December 1996 – diagnosed with malignant condition of the pleural lining caused by asbestos. Plaintiffs sued in March 1997; Robert Sopha died Nov. 1997, so the suit was amended to include wrongful death Defendants moved to dismiss – SOL and barred by claim preclusion Trial court ruled that SOL barred 1997 action but that claim preclusion didn’t apply. State court of appeal certified case to Wisconsin Sup Ct. Holding First issue: When did claim accrue (SOL is 3 years) Def argues for “single injury rule”– all injuries caused by a single transaction by tortfeasor are part of a single action; later injury doesn’t restart SOL Plaintiffs rely on “discovery rule” – SOL starts on date injury is discovered or with reasonable diligence should have been discovered, whichever occurred first. Defendants say discovery rule doesn’t apply because plaintiffs knew earlier about injuries caused by asbestos Another Wisconsin principle: Damages are recoverable for reasonably certain injurious consequences, not for speculative damages Under argument: claim for mesothelioma was premature in 1980s but now is barred – leads to Catch 22 Single cause of action rule – deters stale claims, allows defendants to gain certainty Discovery rule provides for fairness – where no opportunity to litigate a claim If court held that malignancy suit was barred, would be incentive to bring premature lawsuits. Here claim preclusion should not apply Those who wait would lose claim for nonmalignant injuries; those who sue immediately would not be permitted to recover for later malignancy Asbestos: long latency periods Asbestos cases are different from other types of cases because of long latency periods and the progression of the disease Can’t rely on private voluntary arrangements to toll SOL or avoid claim preclusion Issue Preclusion Issue preclusion can only occur when the claim containing the subject issue was not barred by claim preclusion; only applies to a particular issue; and it does not bar litigation of a matter that was not but could have been litigated

Answer 96

Removal of Civil Actions - ▲ waives venue challenge. - Not an option for π because they should have brought it where they wanted it. (a) Generally 1) Removal to federal district where state court lies, at ▲'s option. 2) Fed court must have original JD (diversity/fed ?) (b) Removal based on diversity (2) Forum Defendant Rule - not removable if ▲ resides in the forum state. (c) Federal claim + State claim = sever and remand state claim, hear federal claim in DC. (d) Foreign state ▲ can remove to embracing district

Answer 97

Multiple claim against 1 ▲: YES Multiple ▲'s with same π claim: NO Multiple π's suing 1 ▲ with claims under $75k: NO

Answer 98

1. Served in state (transient/tag) 2. Appear in court (waiver) 3. Domiciled in state 4. Own property in state * in rem: whole world * quasi in rem 1: between parties * quasi in rem 2 for in personam if attached before trial

Answer 99

Joinder of Claims (a) A party can join as many claims as he/she has against the opposing party * if **T/O** - use it or lose it - Pavon * if **not** T/O - your choice

Answer 100

Shore brought shareholder class action against company in federal court; false and misleading proxy statement in connection with a merger; sought damages, rescission of merger, costs Before trial SEC filed suit against same defendants, alleging proxy statement was materially false, misleading; after 4 day trial in SEC case, district court found proxy statement false and materially misleading; court of appeals affirmed Shore then moved for partial summary judgment against Parklane Hosiery asserting that Parklane Hosiery was collaterally estopped from litigating the issues decided in the SEC suit; district court denied motion, saying it would violate Parklane Hosiery’s 7th Am rights. 2d Cir reversed Holding: Mutuality is no longer an invariable requirement for collateral estoppel Blonder-Tongue: defensive use of collateral estoppel – plaintiff can’t assert a claim that it had previously litigated and lost against another defendant Here: offensive use of collateral estoppel: plaintiff seeking to prevent a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff 2 concepts aren’t the same Defensive collateral estoppel gives plaintiff a strong incentive to join all potential defendants in first suit if possible. (Once a plaintiff sues one defendant, any issue litigated and decided adversely to plaintiff will be available to other defendants for issue preclusion in subsequent actions. So plaintiff might as well sue all defendants at once.) Offensive use of collateral estopped has the opposite effect; plaintiff can rely on a previous judgment won by another plaintiff against a defendant but will not be bound by the judgment if defendant wins the earlier case; thus plaintiff has an incentive to adopt a wait and see attitude. If the first suit goes well, plaintiff benefits; if it doesn’t, plaintiff can still sue. So use of offensive collateral estoppel will increase the total amount of litigation Also, offensive use can be unfair to defendant; if first action is a suit for small amount of money, defendant may not have a strong incentive to litigate it vigorously; also unfair if the judgment is inconsistent with a prior judgment Preferable approach is to give trial courts broad discretion to determine when offensive collateral estoppel should be applied; judge should not allow it where it would be unfair (e.g., where plaintiff could easily have joined in the earlier action or application would be unfair). But general rule is that trial courts shouldn’t allow offensive collateral estoppel. Here: Wait and see wouldn’t apply because private party could not join SEC action No unfairness; company had strong incentive to litigate the serious case brought by the SEC Also, judgment in SEC case was not inconsistent with any prior judgment And there were no procedural opportunities available to the defendant in the second action that would lead to different result

Answer 101

Location of impact (express aiming) is no longer enough outside of libel/defamation context; must look at overall facts

Answer 102

1. citizens of different states 2. citizens of a state and citizens or subjects of a **foreign** state 3. citizens of different states **and** in which citizens or subjects of a foreign state are **additional** **parties** 4. a **foreign** **state** as **plaintiff** and citizens of a state or different states

Answer 103

Summary Judgement 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.**

Answer 104

Mathews v. Eldridge TEST - ○ What process is due when the government itself seeks to effect a deprivation on its own initiative: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used and the probably value, if any, or additional or substitute safeguards; 3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Answer 105

1. Can the court accord complete relief without the party? 19(a)(1) * YES - joinder not mandatory \>\> Done * NO - Party is necessary \>\> Step 2 2. Is joinder feasible? (PJ, SMJ, Venue etc.) 19(b) * YES - party must be joined \>\> Done * NO - indispensable test \>\> Step 3 3. Is the party indispensable? * YES - case must be dismissed \>\> Done * NO - Action may continue at court's discretion based on: (i) extent to which judgment in person’s absence would prejudice that person or existing parties; (ii) extent to which prejudice can be reduced; (iii) whether a judgment in the person’s absence would be adequate; and (iv) whether plaintiff would have an adequate remedy if the action were dismissed.

Answer 106

Motion to dismiss for (3) improper venue, or transfer under §1406 *Coltrane* - transfer preferred because π is proceeding pro se. Awful prison case where π son died in custody in LA. She sued in DC.

Answer 107

(Statutory Interpleader): * enables a party with money or property of value of $500 or more to invoke interpleader when * two or more adverse claimants, * of diverse citizenship, * are claiming or may claim to be entitled to such property and the * π has deposited such money or property with the court. Tradeoff: relaxed diversity v. deposit stake with court.

Answer 108

Default Judgement - ▲ fails to plead or otherwise defend 1. For a certain amount = clerk enters 2. In all other cases = court determines and enters

Answer 109

**STEP ONE** _Initial Burden of Production_: Moving party must make a prima facie showing that it is entitled to summary judgment. How that showing is made depends upon which party has the burden of persuasion at trial. (In a suit by A against B for assault, A has the burden of persuasion at trial.) 1. If the moving party bears the burden of persuasion at trial, that party [plaintiff] must support its motion with credible evidence (including but not limited to depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers) that would be sufficient for a directed verdict in its favor at trial if not disputed. 2. If the nonmoving party has the burden of persuasion at trial, the moving party [defendant] may satisfy its burden of production in either of two ways: (1) submit affirmative evidence that negates an essential element of the nonmoving party’s claim, or (2) demonstrate that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim. [*Celotex* is an example of #2]. The moving party cannot just assert in a conclusory way that the nonmoving party has no evidence. Rather, it must affirmatively show the absence of record evidence. This can be done, for instance, by reviewing the existing evidence in the record or deposing the nonmoving party’s witnesses. C. If the moving party fails to satisfy its initial burden of production, summary judgment must be denied. **STEP TWO** _Moving Party Satisfies Its Initial Burden of Production_: Burden of production then shifts to the nonmoving party. The nonmoving party must either produce evidence that establishes a genuine issue of material fact for trial or submit an affidavit seeking additional time for discovery (in order to secure the requisite evidence). **STEP THREE (and beyond)** If the nonmoving party provides evidence showing a genuine issue of material fact, the moving party must respond by showing that the evidence relied on by the nonmoving party is inadequate. If the moving party fails to provide an adequate response, summary judgment must be denied. If the moving party shows that the nonmoving party’s evidence is inadequate, then the nonmoving party must either rehabilitate its evidence or produce additional evidence showing a genuine issue of material fact (or submit an affidavit seeking more time for discovery). BOTTOM LINE ASSESSMENT: The court looks at all the evidence submitted by both sides to determine whether the moving party has shown that there is no genuine issue of material fact for trial.

Answer 110

1. Unilateral activity: foreseeability is not enough; must look at the conduct of the defendant (World-Wide Volkswagon) 2. Intentional torts/express aiming is no longer enough outside of libel/defamation context; must look at overall facts (Walden) 3. Stream of commerce possible tests 4. Waiver applies 5. For multiple defendants, must analyze separately (Bristol-Myers) 6. Sotomayor synthesis in Bristol Myers dissent (also in Cybersell):

Answer 111

**CROSS CLAIMS** Claim by a defendant against a co-defendant. Must already be a party. Rule 13(g). Test is “same transaction or occurrence that is the subject of the original action or counterclaim or claim relates to property that is subject matter of original action”

Answer 112

* It is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit because joint tortfeasors are merely permissive parties. Temple had surgery in which a plate and screw device was implanted in his lower spineManufactured by Synthes; LaRocca performed surgery Screws broke off inside Temple’s back Sued Synthes in federal court; sued LaRocca and hospital in state court Synthes moved to dismiss federal suit for failure to join necessary party Supreme Court held that Synthes was not even a necessary party, let alone an indispensable party. A tortfeasor with joint and several liability is merely a permissive party.

Answer 113

Removal by ▲ from state to federal court in the district containing the state court. Venue is automatically proper. No need for §1391(b) (venue requirements) ▲ is waiving objection to venue by removing.

Answer 114

Assault: A v B Step 1: What do you have to produce with motion for ΣJ? * A moves: Evidence (π rarely wins ΣJ) * B moves: Evidence - point to insufficiency of evidence in the record Step 2: What do you produce in response? * B opposes: Evidence - genuine issue of material fact. Rule 56(a)(2) * A opposes: Evidence - Rule 56(d)(2) Step 3: Is there an issue of material fact for trial?

Answer 115

* A federal court sitting in **diversity** must apply state substantive law, whether statutory or common law. * The law should be the same, though the judge may change. * **Must apply state common law** * Substance = state statute and common law * Procedure = FRCP

Answer 116

This case involved an interpleader relating to insurance coverage. Atlas, the plaintiff, was a dealer who claimed that more than $6 million in jewelry and other valuables had been stolen. Various “memo holders” sought to recover for valuables consigned to Atlas. As a result, Atlas sued its insurance carriers based on its $3.1 million in coverage. The court held that the insurance defendants were entitled to interplead the various memo holders under Rule 22. First, the insurance carriers **legitimately feared** multiple litigation over the $3.1 million fund. Second, absent interpleader, **unnecessary duplication** and waste would occur. Finally, Atlas was **adverse** to the memo holders, and defendants were **adverse** to all of the other parties because they were denying liability to Atlas and the memo holders

Answer 117

Rule 13(g) * always **permissive** * π v ▲1, ▲2 * ▲1 sues ▲24 * **T/O**

Answer 118

1. TRO * Can be issued ex parte. * Time limit - 14 days usually, extendable another 14 days * Doehr declared unconstitutional 2. Preliminary Injunction * throughout trial * Supreme Court gold standard * briefed and litigated before issued 3. Permanent Injunction * ruling at verdict * Structural injunction - example - prison that is unsafe or unfair, court will issue perm inj requiring the prison fix it. 4. Declaratory Judgement * A gentler form of relief than an injunction; tells the parties what their respective rights are

Answer 119

1. Likelihood of success on merits. 2. No adequate remedy at law. 3. Irreparable harm - if granted/not granted.

Answer 120

(a) Voluntary dismissal * by π, w/o prejudice unless previously voluntarily dismissed (b) Involuntary dismissal * by ▲, with prejudice (unless PJ, venue, 12(b)(6))

Answer 121

Unlike personal jurisdiction, subject matter jurisdiction cannot be waived. However defects in removal can be waived.

Answer 122

* A federal court of appeals should not defer to a district court’s interpretation of state law. 1. Federal court must make an educated guess if there is no state supreme court opinion on point 2. Even an intermediate state appellate decision is not necessarily controlling 3. A federal appellate court gives no deference to a federal district court in ascertaining state law [Salve Regina College]

Answer 123

1. Property for **in rem**, **quasi in rem 1**: Will **always** be sufficient contacts, and it is hard to imagine due process issues 2. Property for **Quasi in Rem 2**: existence of property, even if attached prior to judgment, is **not automatically** enough a. Must do **minimum** contacts/**due** process analysis b. Property can, however, be an important contact depending on the case c. No need for a minimum contacts analysis if the action is merely to seize property to enforce a valid judgment 3. Tag Jurisdiction a. Burnham: Supreme Court is divided i. **Scalia** plurality: tag jurisdiction **always enough** without due process analysis (although perhaps subject to a voluntariness test) ii. **White**: There may be an **egregious** situation where tag jurisdiction not enough but in virtually all cases it is enough iii. **Brennan** plurality: must apply **due process** but that test is easily satisfied (e.g., three days in the venue getting the benefits of government services) (note: for Brennan, tag is substitute for continuous and systematic for general jurisdiction but would also require reasonableness) b. Tag jurisdiction **may not be enough**, even for the Scalia plurality, if the person served is in the residence **involuntarily**. For Scalia, this safety valve would exist, if at all, only in the most egregious case (e.g., plaintiff kidnaps the defendant, moves the defendant to the forum state, and effects service)

Answer 124

the defendant must file a short and plain statement of the grounds for removal, which shall be signed 30 days remove 30 days remand Must remove within a year of commencement, unless joinder of claims or parties would open up diversity. Consent of all joined parties required.

Answer 125

A party cannot inject his or her psychological treatment, conditions, or symptoms into a case and expect to be able to prevent discovery of information relevant to those issues.

Answer 126

(b) Defenses; Admissions and Denials. (1) Response to a pleading: (A) **short and plain** statement of defenses to each claim (B) **admit or deny** (2) Denials must respond to the substance of the allegation. (3) Deny all (including JD) = general denial (4) Denying **Part** of an Allegation = admit truth and deny the rest (5) **Lacking Knowledge** or Information = denial (6) Effect of **Failing to Deny** = admitted

Answer 127

**TRANSFER OR DISMISS** Cure or waiver of defects when venue is improper: - transfer if in the interest of justice (Circus Circus) - PJ, SMJ, venue test for transferee district

Answer 128

§1453(b) - A class action may be removed to a district court of the United States in accordance with section 1446 (except that the **1-year limitation** under section 1446(c)(1) **shall not apply**), **without regard** to whether any defendant is a **citizen of the State** in which the action is brought, except that such action may be removed by any **defendant without the consent** of all defendants.

Answer 129

Class Settlements For purposes of our class, the **key Girsh factors** focus on (1) reasonableness of the settlement amount given the risks and likely duration of litigation; (2) whether the parties had adequate opportunity to investigate the claims. The settlement provided uncapped monetary compensation for retired NFL players with certain cognitive conditions (diagnosed currently or over the next several decades), a baseline assessment program for all class members, and a fund to educate football players on how to prevent injury. After finding that class certification was proper, the Third Circuit agreed with the district court that the settlement was fair, reasonable, and adequate. Initially, the court emphasized that there is a presumption of fairness in settlements where, like here, certain elements are met: arms-length negotiations, sufficient discovery, settlement proponents with experience in similar litigation, and objections from only a small fraction of the class. The court then provided a detailed fairness analysis using the nine ***Girsh* factors.** The analysis largely tracked the district court's analysis in previously approving the settlement. Both courts also focused on whether the settlement's treatment of CTE was fair. The court found that it was reasonable to limit the death with CTE condition to only a small subset of class members who were diagnosed with CTE prior to the district court's final settlement approval. As to the other class members, the court emphasized that because the cognitive symptoms of CTE correlated with other compensable conditions, those with CTE would likely be compensated under a different qualifying diagnosis.

Answer 130

1. Mandatory Disclosures (Rule 26(a)(1)) 2. Depositions (Rule 30(c-d)) 3. Interrogatories to parties (Rule 33) 4. Documents, tangible things (Rule 34) 5. Physical and mental exams (Rule 35) 6. Requests for admission (Rule 36) 7. Electronic Discovery (Amended Rules 3, 16, 26, 33, 34, 45)

Answer 131

Rule 26(a) Without awaiting request, provide: * names, addresses, and phones. * Docs * Computation of damages * Insurance agreements

Answer 132

1. Injunctions §1292(a)(1) 2. Certification §1292(b) 3. Rule 54(b) - Judgement on multiple claims/parties 4. Mandamus 5. Collateral Order Doctrine - judge orders someone not wear religious item in court etc. 6. Rule 23(f) - Appeal from grant/denial of class cert. * doesn't require approval by judge only acceptance by COA

Answer 133

Admit or deny

Answer 134

1. Default 2. Involuntary Dismissal 3. Voluntary Dismissal 4. Summary Judgement

Answer 135

General Standards: * Likelihood of success on merits. * No adequate remedy at law. * Irreparable harm - if granted/not granted. Two Kinds: 1. Temporary Restraining Order (TRO): an injunction pending the determination of a preliminary injunction. 65(a) 2. Preliminary Injunction: an injunction pending the resolution of the merits of the litigation. 65(b)

Answer 136

1. Venue * In Removed Cases * In Cases filed in Federal Court 2. Transfer * §1404 * §1406

Answer 137

1. Can serve as a form of contractual agreement to personal jurisdiction 2. Supreme Court allowed for forum selection clauses to be enforced even in the consumer context as long as such clauses are not unreasonable (Carnival Cruise Lines) (did not subject consumer to an inexperienced, partisan, or remote alien forum and was not designed to discourage claimants from pursuing legitimate claims)

Answer 138

* compel * sanctions * protective order * A party may seek to compel answers or responses to devices. Rule 37(a). * A party may seek sanctions for allegedly improper responses or conduct. Rule 26(g), 30(d)(2), 37(b). * A party who wants to preclude, limit, change, or otherwise impose restrictions on discovery may see a protective order. Rule 26(c).

Answer 139

1. Rule 41(b): Plaintiff fails to prosecute 2. Within court’s discretion; can operate as an adjudication on the merits with res judicata effect.

Answer 140

N - necessary part of judgement in prior case I - identical to issue in prior case L - actually litigated in prior case Need (1) issue at stake to be identical to one litigated; (2) issue was actually litigated in prior litigation; (3) determination of the issue in prior litigation was a critical and necessary part of judgment in earlier action. Merger - claim preclusion if claimant won case 1 Bar - claim preclusion if claimant lost case 1

Answer 141

Failure to state a claim - does this case belong in the litigation stream at all? * Does **not** look at **evidence**. * Looks at the **face** of the **complaint**. Test: TWIQBAL * **Ignores** **conclusions** of law and looks only at allegations of fact. * The **facts** alleged must support a **plausible** claim (not just possible). * To determine plausibility, **judge** uses own experience and common sense. * Can **dismiss** **with/out prejudice/leave to amend**.

Answer 142

π's initial complaint must contain the **references** to the federal question and the federal issue evoked. The federal question and issue **cannot arise in an anticipated defense**, it must be presented from the initial complaint.

Answer 143

New Trial; Altering or Amending a Judgment * result is against reason (rule 50) v "something went wrong here" (rule 59) * relief because of a mistake = no claim preclusion * Many criteria: * insufficient evidence * newly discovered evidence * question of damages +/- * inadmissable evidence * jury misconduct (a) In General. (1) Grounds for New Trial. The court may, on motion, grant a **new trial** on all or some of the issues—and to any party—as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court. (2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment. 28 days after the entry of judgement: (b) Motion for a New Trial (d) New Trial on the Court's Initiative (e) Motion to Alter or Amend a Judgment

Answer 144

1. Stare Decisis 2. Law of the Case 3. Claim Preclusion 4. Issue Preclusion

Answer 145

Consolidation; Separate Trials * First consider venue and transfer motions, then removal, then consolidation * If venue/JD problems = MDL * cases remain **separate** but same trial * **weak** because same district required * Malcom v National Gypsum (too many parties to try together - abuse of discretion) (a) **Consolidation**. If actions before the **same district** involve a **CQLF** the court may: (1) **join** for hearing or trial any or all matters at issue in the actions; (2) **consolidate** the actions; or (3) issue any **other orders** **to avoid unnecessary cost or delay** (e.g. joint discovery) (b) **Separate Trials**. For convenience, to avoid prejudice, or to expedite and economize, the court **may order a separate trial** of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial. Test: **common question of law or fact**

Answer 146

How to Present Defenses. 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: (1) **lack of subject-matter jurisdiction;** (2) **lack of personal jurisdiction;** (3) **improper venue;** (4) insufficient process; (5) insufficient service of process; (6) **failure to state a claim** upon which relief can be granted (judgement as a matter of law); and (7) **failure to join** a party under Rule 19 (Necessary and permissive joinder of parties)

Answer 147

Facts Herrera stuck by an automobile owned by Reicher and driven by Reicher’s son (Paul, Jr). Reicher was insured by American Family. Herrera brought tort action against Reicher and son. Jury awarded $8000 on the claim against the son but denied recovery against the father. Later Herrera sued Reicher and American Family (but sought no relief sought against Reicher). Herrera sought recovery of the $8000, then final, awarded against the son. Trial court granted summary judgment to defendants based solely on issue preclusion. Holding Issue must have been unambiguously decided in the first suit. Plaintiff argues that the issue of whether the son had permission (express or implied) to drive the father’s car was not resolved in the tort action and thus the trial court erred in invoking collateral estoppel. Defendants argued that the jury determined that the father did not know or have reason to know that the son used the car, and thus the father didn’t give permission to the son; thus, the son was not insured under the policy. Defendants relied on instruction 7 and on the fact that the verdict was in favor of Reicher. Plaintiff’s theory was negligent entrustment. Under that instruction, jury had to believe 7 specific propositions before returning a verdict for plaintiff against Reicher. Verdict was general verdict that didn’t show which propositions the jury failed to believe. Thus, instruction 7 placed a number of things on plaintiff to prove. Defendants argue that the only explanation for the verdict is that the jury concluded that the son was operating the car without permission. The jury could have believed all of the propositions in the instruction except that part of #4 that required a belief that the father was negligent in making the car available to the son. The jury could have found that the father made the car available but wasn’t negligent in so doing. Irrelevant that the instruction may have been an incorrect instruction of the law. What the jury did is what matters for collateral estoppel. Irrelevant that the ambiguity that exists is a result of flaws in the instruction. Possible to explain general verdict as jury finding that the defendant did give permission but that he was not negligent or that no permission was given Special verdict would have solved the problem; would have shown unambiguously how jury resolved each issue Can’t call jurors to testify about rationale of their decision

Answer 148

Rule 37 * Motion to compel if failure to respond to discovery or incomplete * Sanctions for failure to comply with court order, including prohibiting testimony, striking pleadings, dismissing the action * Sanctions for failure to admit or failure to disclose (initial disclosures) or supplement, including attorneys’ fees, other sanctions

Answer 149

* Under the law of the case doctrine, a court is ordinarily precluded from re-examining an issue previously decided by the same court, or a higher court in the same case. * Applies only during the course of a single proceeding, and forecloses re-examination of decided issues either on remand or on a subsequent appeal. Thus, operates only within the confines of a single case – binding subsequent proceedings in the same case, both at trial and on appeal. * Law of the case doctrine doesn’t preclude appellate court review of a lower court ruling

Answer 150

* Entry of final judgment on fewer than all claims or on all claims against one party but fewer than all parties. * Discretionary with court; think of it as a partial final judgment. * Purpose: mitigate unfairness of delaying appeal that might otherwise occur but for liberal joinder of claims, parties. Issue in the court of appeals: whether district court abused its discretion by entering Rule 54(b) order. Requirements 1. Multiple claims or parties * Easy to determine if there are multiple parties * Harder issue: adjudication of one or more but fewer than all claims. * If a case disposes of a particular legal issue but not a claim, Rule 54(b) doesn’t apply. * Claim: refers to cause of action or legal right. 2. Final ruling on at least one claim or party 3. No just reason for delay: Do needs of parties outweigh the interest of having just one appeal at end of case? * Discretion of district court (including hardship of allowing immediate appeal)

Answer 151

Issue was decided or could have been decided as part of the case (same transaction or occurence); parties the same 1. Identity of Parties: Two lawsuits must involve the same parties or their privies * Privies include successors in interest, trustees, assignees/assignors 2. Original case must have produced a final, jurisdictionally valid judgment on the merits except: * JD * venue * indespensable parties 3. Both actions must involve the same cause of action (same transaction or occurrence or same factual underpinning); brought or could have been brought

Answer 152

* SC Workmens Compensation Act bared injured employees from suing. * π, NC resident, brought suit in Fed court on diversity grounds. * Is π barred from jury trial because of SCWCA? * Look at whether there is a **countervailing federal interest.** * Here, the right to a jury trial is protected under the 7th Amendment. Therefore, federal procedure overrules. * Issue of whether outcome is effected must be decided when the case is filed.

Answer 153

(a) Claim for relief 1. short and plain statement of the grounds for the court's **jurisdiction** 2. short and plain statement of the **claim** showing the pleader is entitled to relief 3. a demand for the **relief** sought, which could include relief in the alternative or diff. types 1. A pleading can violate Rule 8(a) by being too long (Gordon v. Green 4000 page complaint) 2. A pleading can violate Rule 8(a) – and thus be subject to a 12(b)(6) attack – if it is conclusory and/or does not contain facts that set forth a plausible claim for relief

Answer 154

* Orders granting, continuing, modifying, refusing to dissolve injunctions; * TROs not included. * Both preliminary and permanent injunctions are appealable.

Answer 155

Default Judgement - ▲ fails to plead or otherwise defend 1. For a certain amount = clerk enters 2. In all other cases = court determines and enters * Res judicata effect against π

Answer 156

A case removed and remanded cannot be appealed 30 days remove, 30 days remand Except: §1442 (US officers and agencies) and §1443 (civil rights cases)

Answer 157

Extraordinary or drastic circumstances involving a usurpation of power or clear abuse of discretion E.g., judge wrongfully refused to allow a jury trial; judge wrongfully refusef to recuse himself or herself.

Answer 158

1. SMJ (if no smj then no federal court anyway) 2. PJ 3. Decide if venue is proper under §1391 or to remove/transfer (Burden of proving need for transfer lies on the moving party, consent of all parties not required) (*Manley*) 4. venue (motion to transfer occurrs) 5. Decide 1404 or 1406 1. §1404 - transferor law controls 2. §1406 - transferee law controls 6. Analyse venue and PJ for transferee district