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Civ Pro Flashcards

1
Q

Final Judgment Rule

A

You cannot appeal a decision of the trial court with which you disagree until there is a final judgment in the case. With Exceptions.

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2
Q

What is an example of Domestic Exceptions from Federal Court Diversity Jurisdiction

A

Probate Courts: child support and custody, divorce, success and wills

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3
Q

What are 3 types of Diversity of Citizenship Jurisdiction?

A
  1. between citizens of different States
  2. between citizens of a State and subjects of foreign State (alienage)
    - -Except when the foreign subject is lawfully admitted for permanent residence in the US and are domiciled in the same State
  3. between citizens of different States with subjects of foreign States on either side
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4
Q

What does it mean to a be a “citizen of a State”

A

One must be a U.S. national to be a “citizen of a State.”

A U.S. national is a citizen of where she is domiciled.

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5
Q

What are 2 tests to determine domicile for an individual?

A

“Presence and Intent to Remain Indefinitely” Test: the physical presence in a State and the intent to remain indefinitely must occur at the same time. “Indefinitely” can be the absence of an intent not to remain.

“Intent to Make it Your Home for the Time Being” Test: no “indefiniteness” but stronger intention.

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6
Q

What are two elements to determine the domicile of Corporations?

A

A corporation is deemed to be a citizen of every State and foreign State by which it has been (1) incorporated and (2) has its principal place of business.

PPB: nerve-center (HQ); where managers control and coordinate corporate activity.

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7
Q

What is the citizenship of unincorporated partnerships?

A

Partnerships and unincorporated associations have the citizenship of the domicile of all partners or members of the association.

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8
Q

What two things do you require for Diversity of Citizenship Jurisdiction?

A

One must have (1) Complete Diversity and the (2) amount in controversy must exceed $75,000.

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9
Q

“St. Paul Mercury” test

A

When P is invoking Diversity Jurisdiction, it must be legal possible to exceed the amount in controversy in the P’s complaint.

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10
Q

When can one aggregate the amount in controversy?

A

Aggregation is possible between one P and one D.
–alternative theories cannot be aggregated

  • -common and undivided rights are aggregated (injunction)
  • -“joint” claims are aggregated
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11
Q

What does it mean for a case to arise under a federal law in the in Article III?

don’t confuse this with the arising under in the Statute.

A

A case arises under federal law in Article III if it has any federal ingredient.

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12
Q

What is the “well-pleaded complaint” Rule?

A

In deciding the Federal Question Jurisdiction, courts look only at the complaint and the bare minimum that would justify relief without expected defenses.

“Is the P enforcing a federal right?”

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13
Q

“Holmes Creation Test”

A

Does the federal law create the cause of action in a well-pleaded complaint?

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14
Q

Holmes Group Fix

A

Allows counterclaims to remove cases concerning copyright and patent.

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15
Q

Grable/Gunn Test

A

If a complaint mentions both federal and state law, the federal issue must be (1) necessarily raised; (2) actually disputed; (3) substantial; with (4) no disruption to the balance between federal and state judicial responsibility.

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16
Q

Removal Jurisdiction

A

D can remove if the case could have been brought in federal court.

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17
Q

In-State Defendant Rule

A

D cannot remove a Diversity Jurisdiction case if any one of the Defendants is a citizen of the forum State.

This does not apply to non-US nationals.

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18
Q

How many days does a Defendant have to remove?

A

D must remove within 30 days of service from the last served D.

If a case becomes removable after an amendment, D has 30 days to remove.

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19
Q

Is there a time limit to removal based on Diversity and Federal Question Jurisdictions?

A

There is no time limit for removal based on Federal Question Jurisdiction.

Removal based on Diversity cannot occur after 1 year after commencement of the action, unless the P hid the information to prevent removal.

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20
Q

Amount in Controversy in Removal

A

Non-monetary: look to the cost to the party abiding by the injunction

Monetary: “preponderance of the evidence”: arguing that more likely than not the amount in controversy will be more than $75,000.

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21
Q

How many days does the Plaintiff have before Waiving Objections to Improper Removal?

A

The P has 30 days to make a motion to remand.

The court cannot sua sponte bring up non-jurisdictional problems.

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22
Q

Where can the Defendant Remove to?

A

D can only remove to the federal district that embraces the state court where the case was filed.

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23
Q

What choice of law will federal court use upon removal?

A

A federal court sitting in Diversity or Supplemental Jurisdiction will make the choice of law decisions of a forum state court. (Klaxon)

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24
Q

Full Faith and Credit

A

If a court had jurisdiction and did not violate Due Process, other states or federal courts have to uphold decisions against the D.

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25
Q

Special and Limited Appearance

A

Special Appearance: D appears in court solely to dispute the PJ of the court over D. Some states prohibit mentioning the merits of the case.

Limited Appearance: D appears in a quasi in rem action to dispute liability. D will be held liable only up to the value of the identified property.

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26
Q

FRCP 4(k)(1)(A)

A

the federal courts use the state long arm statute to establish personal jurisdiction

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27
Q

FRCP 4(k)(2)

A

The federal court has personal jurisdiction over a D if (1) no state has PJ over the D for a (2) claim that arises under federal law and (3) in line with the 5th Amendment Due Process Clause.

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28
Q

What are 4 ways to establish General In Personam Jurisdiction?

A

(1) D (who voluntarily entered the territory) is served with process in the forum state.
(2) D’s agent is served with process in the forum state.
(3) D is “at home” in the forum State (Daimler)
(4) D waives his personal jurisdiction and appears in the forum state.

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29
Q

When is a Defendant “at home” (Daimler)?

A

Individual: Domicile

Corporation: Incorporation & PPB (comparative)

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30
Q

Scalia on Transient Presence Jurisdiction (and Tagging in general)

A

Jurisdictional principles that are (1) firmly approved by tradition – traditional at the enactment of the 14th Amendment – and (2) still favored, satisfy the Due Process Clause of the Constitution.

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31
Q

What are 3 questions to consider to determine whether a court has specific personal jurisdiction over a Defendant?

A

(1) Did the D reach out sufficiently to the forum State to constitute purposeful availment concerning the state;
- Foreseeability
- Calder’s Effects Test / Zippo Test / Contracts / Stream of Commerce

(2) Did the cause of action arise out of or is related to those contacts; and
- But-For / Evidence / Modified Sliding Scale Approach

(3) is the forum state sufficiently convenient or reasonable?
- McGee Factors

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32
Q

What are the 3 elements of Calder’s Effects Test

A

(1) D must commit an intentional act (2) that is expressly aimed at the forum state and (3) causes actual harm that the D knows is likely to be suffered in the forum state.

Anticipating the harm alone is not enough.

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33
Q

Zippo Test (internet based on interactivity)

A

Business Conduct: purposeful availment

Information Exchange: depends on activity

Presentation of Information: not purposeful availment

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34
Q

What are 5 considerations for determining purposeful availment and foreseeability in Contract cases?

A
  • Was D the first one to reach out to the forum state?
  • Did D accept long standing contractual relationship with the forum state?
  • How involved is D’s relationship?
  • How sophisticated is D?
  • Was there a choice of forum clause?
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35
Q

What are 3 different standards in approaching Stream-Of-Commerce cases?

A

Brennan Standard: purposeful availment is satisfied with awareness that sufficient number of products will reach the forum state.

O’Connor Standard: purposeful availment ALSO requires an intent to serve the market in the forum state.

Ginsburg vs. International: international trades directed at any state in the US should be considered to have satisfied the O’Connor Standard for all states. The same connection should be applied to foreign Ds.

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36
Q

Evidence Test

A

The way the D reached out to the forum state is evidence of or part of the cause of action.

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37
Q

What are the 3 considerations of Modified Sliding Scale Approach

A

(1) D’s activities that gave rise to the cause of action are similar to the D’s activities reaching out to the forum state; (2) P is a domiciliary of the forum state; and (3) cause of action arose in the forum state.

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38
Q

What are the 4 McGee Factors?

A

(1) Forum state’s interest
(2) P’s inconvenience to attend
(3) Crucial witnesses (evidence)
(4) D’s inconvenience to attend

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39
Q

Who can deliver service of process?

A

Service can be delivered by any non-party who is at least age 18.

“non-party” is to prevent bias (sewer-service). The P is a party. An employer can be a party. A brother is not a party.

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40
Q

What are the 3 methods of service to an individual?

A

(1) Personal Service
- actual human contact

(2) Substituted Service

(3) Service on D’s Agent
- your attorney is not your agent for service of process

(and) may rely on state law (where federal court is located and where the D has been served)

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41
Q

What are three elements of substituted service?

A

Leaving process at the D’s (1) dwelling or usual place of abode with (2) someone of suitable age and discretion (3) who resides there.

“suitable age” follows state law

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42
Q

What is one method to deliver service to a business?

A

Delivery to an officer, a managing or general agent.

- does not have to be a human contact (personal) delivery

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43
Q

What is the time limit for service?

A

D must be served within 90 days after the complaint is filed.

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44
Q

What is the Constitutional Standard for Notice?

what are the 4 considerations for reasonableness?

A

Notice must be reasonably calculated under all the circumstances to apprise the party of the proceeding. Reasonableness includes:

  • cost to give actual notice to people
  • value/level of the interest being notified
  • to what extent are the people who do get notice able to represent the interest of those who do not.
  • other ways interested parties have already been apprised of the lawsuit independently.
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45
Q

How can a Plaintiff notify unknown or uncertain defendants?

A

For those unknown or uncertain beneficiaries, looked for with due diligence, constructive notice (publication) is sufficient.

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46
Q

What are the 7 things in a Summons?

A

A summons must: (a) name the court and the parties; (b) be direct to the D; (c) state the name and address of the P’s attorney or of the P; (d) state the time within which the D must appear and defend; (e) notify the D that a failure to appear and defend will result in a default judgment against the D for the relief demanded in the complaint; (f) be signed by the clerk; and (g) bear the court’s seal.

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47
Q

Doctrine of Forum Non Convenience

A

A discretionary power to dismiss an action so it can be brought outside the federal court system – often so it can be brought abroad. It considers the Private and Public Interests in § 1404.

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48
Q

What are 4 methods of determining venue?

A

(1) Residential Venue
(2) Transactional Venue
(3) Fallball Provision
(4) Non-Residents

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49
Q

Residential Venue

A

If al Ds are residents of the same state, P may lay venue where any one of the resides.

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50
Q

How do we determine residency for Individuals (venue)

A

domicile

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51
Q

How do we determine residency for businesses (venue)?

A

(1) Pretend the districts are states.

(2) Do those districts/states have PJ over the business?
- “at home” (general) and specific (in relation to the cause of action)

(3) Don’t forget to do the venue calculation

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52
Q

What is transactional venue?

A

P may lay venue where a substantial part of the events or omissions giving rise to the claim occurred.

Uffner: some district courts look to the D’s (wrongful) actions only.

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53
Q

What is a fallback provision?

A

If all Ds all reside in different states and no substantial cause of action occurred in the US, P may lay venue on any district where any D is subject to PJ.

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54
Q

How do we determine venue for non-residents?

A

Non-residents (without permanent residents) can be brought in any district.

Exclude non-residents from venue calculations.

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55
Q

What are 2 things in common between 1404 and 1406 for transfer of venue?

A

The transferee must be (1) a proper venue and (2) have PJ over the D. Both must be true without waiver by the D.

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56
Q

What type of transfer is 1406 and what can the court do?

A

The transferor is an improver venue. PJ being cured in the course of fixing venue is allowed. Moving to cure PJ is not allowed.

The court may dismiss the case via motion to dismiss for improver venue. Courts consider statute of limitations, and whether mistake was reasonable.

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57
Q

What type of transfer is 1404 and why do it? What is Van Dusen?

A

A district with venue may transfer to a more convenient district with venue. If all parties agree, may transfer to an improper venue as well.

Because the transfer was primarily for convenience, transferee court will make the same choice of law decisions as the transferor court (Van Dusen)

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58
Q

What must the D show to justify transfer?
What are 6 private-interest considerations?
What are 3 public-interest considerations?

A

(1) D must establish that P originally could have brought the action in the proposed transferee district.
(2) D must demonstrate that considerations of convenience weigh in favor of transfer by showing the following:

Private-interest considerations: (1) P’s choice of forum; (2) D’s choice of forum; (3) whether the claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) the ease of access to sources of proof.

Public-interest considerations include: (1) the transferee’s familiarity with the governing laws; (2) the relative congestion of the calendars of the potential transferee; and (3) the local interest in deciding local controversies at home.

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59
Q

What is required for an action to be entertain able by a federal court?

A

(1) must fall within federal judicial power in Article III (Constitution); and
(2) Congress (statutory) must have chosen to make the action entertainable by a federal court.

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60
Q

Can Congress pass a statute stating that only federal courts can entertain diversity cases?

A

If a case falls under the judicial power (diversity and federal question), Congress can give the case exclusively to federal courts. But they often choose not to. Therefore cases entertained by the federal courts have concurrent jurisdiction.

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61
Q

When can Congress override Supreme Court?

A

If Supreme Court’s decision involves interpretation of a statute (as opposed to the Constitution) the Congress can override the interpretation of one statute by passing a new one.

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62
Q

Rule 8. General Rules of Pleading (3 elements)

A
  1. statement for the court’s jurisdiction
  2. short and plain statement of the claim, “showing” entitlement to relief.
  3. demand for relief
63
Q

3 steps to analyzing Twiqbal (Plausibility Standard) (in Rule 8)

A
  1. does the complaint state a claim?
  2. is the complaint sufficiently specific to give notice to D
  3. using judicial common sense and expertise, is the complaint sufficiently detailed that there is reasonable probability that discovery will give rise to some evidentiary support to justify going to discovery?
64
Q

Rule 9. Pleading Special Matters. How do you allege fraud? How do you allege Intent?

A

In alleging fraud, a party must satisfy a heightened pleading standard… (with quotes and such)

Intent and other conditions of mind may be alleged generally. (less strict than Twiqbal even though heightened pleading)

65
Q

What are 3 types of insufficient complaints (pleadings)?

A
  1. legal insufficiency: failure to state a claim… often before there’s motion for more definite statement.
  2. insufficient specificity: motion for a more definite statement.
  3. Insufficient evidentiary support: you can’t do summary judgment in the pleading, and Rule 11 are rarely given. so Twiqbal.
66
Q

Rule 55. Default Judgment. What do courts consider in D’s absence?

A

court may hold an evidentiary hearing to decide damages and injunctive relief.

court will see if P stated a claim.

court will make sure of SMJ, PJ, and Venue.

67
Q

What is a narrow exception when SMJ can’t be brought up?

A

When it’s all over. Not mentioning it in court doesn’t matter when everything is over.

68
Q

If D defaults, can D collateral attack SMJ, PJ, Venue?

A

SMJ: NO. the idea is court had strong obligation anyway.

PJ: YES.

Venue: No. State courts hold no collateral attack on venue ground.

69
Q

Rule 12. Preanswer Motions.

How many days does D have to answer a pleading?

How many days after court denies a motion?

How many days after court grants a motion for a more definite statement?

A

21 days

14 days after notice of the court’s denial.

14 days after days of receiving the remanded pleading

70
Q

Rule 12. Preanswer motion. What are the 6 important pre answer motions? Group them and discuss when they are waived.

A

SMJ: never waived

PJ, Venue, Process, Service: if you submit a pre answer motion, these 4 must be in it (unless it was unavailable). If your first response is an answer, it must be in it (unless amended as a matter of course)

failure to state a claim, failure to join a necessary party: if you submit a pre answer motion, these 2 cannot be brought up in the second pre answer motion (unless it was unavailable). But you can bring it up in later pleading or during trial

71
Q

Rule 12. Preanswer Motions. What are 4 other less important motions?

A

motion for judgment on the pleadings; motion for a more definite statement; motion to strike; joining motions

72
Q

What are 4 possible defenses in an answer?

A
  1. pj, smh, venue, service, process
  2. failure to state a claim
  3. negative defenses
  4. affirmative defenses
73
Q

Rule 8(b). Defenses (response) 2 elements.

lacking knowledge?
failure to address?

A

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.

saying lack of knowledge has the effect of a denial.

failure to address (which is like default) constitutes admittance

74
Q

Rule 8(b). Defenses (response). What is a mistaken designation?

A

if a part mistakenly designates a defense as counterclaim and vice versa, the court must ,if justice requires, treat the pleading as thought it were correctly designated. The court is to be generous.

75
Q

Rule 11. Singings (sections). What does singing certify?

A

By singing, an attorney certifies to the best of the person’s “reasonable” (objective) knowledge, information and belief, formed after a “reasonable” (objective) inquiry under the circumstances…

(1) not for harrassment
(2) not legally frivolous
(3) factual allegations likely have evidentiary support after discovery
(4) denials of factual allegations are not frivolous

76
Q

Does Twiqbal apply to answer pleadings (defenses)? What standard applies?

A

No twiqbal because no “showing.” However, rule 11 standards apply.

77
Q

Rule 11(c). Sanctions. what kind of violation does it apply to aside from the ones certified by signing?

A

Rule 11 is the violation by the person who signs of the representation made under reasonable belief and reasonable inquiry.

78
Q

Rule 11(c). Sanctions. What is safe harbor?

A

A motion for sanction must not be presented to the court if the challenged contention is withdrawn or corrected within 21 days (safe harbor) after service on the other party.

the court may sua sponte make a motion for a party to show cause that the party has not violated rule 11(b)

79
Q

Rule 15. Amendments. What is an amendment as a right? How many days can you do you have and in what 2 situations?

A

A party may amend its pleading once as a matter of course within:

a. 21 days after serving it; or
b. 21 days after service of a responsive pleading or motion.

80
Q

Rule 15. Amendments. What are the 4 considerations for Amendment by Leave of Court?

A

a. prejudice
b. futility
c. diligence
d. bad faith

81
Q

Rule 15(c). Relation Back of Amendments. What is relation back and what is the general standard?

A

An amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the same transaction as the original pleading.

82
Q

Rule 15(c). Relation Back. When can an amendment add/change party or the naming of the party?

A
  1. the amendment arises out of the same transaction as the original pleading; and
  2. within 90 days after the amendment is filed OR within the statute of limitation, the party to be brought in by amendment:
    i. received sufficient notice of the action; 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.

(there are some cases when people sue an “unknown employee” alongside the company. States differ on this. Professor thinks it’s acceptable)

83
Q

Rule 15. Amendment. Flow chart. 3 steps.

A
  1. will the court allow the amendment? (if not by right)
  2. is the new theory of liability in the complaint within the statute of limitations?
  3. is it preserved because it relates back to the original complaint? (same transaction or adding new party)
84
Q

What are the 3 policies behind statute of limitations and why relation back is “fair.”

A

Under “same transaction”:

  1. evidence will remain fresh.
  2. people not in need of repose.
  3. importance of matter not dismissed. (if it was so important, you should have brought it sooner attitude)
85
Q

Rule 4. Summons

A

Review. Process consists of a summons and a complaint. Service can be delivered by any NON party who is at least 18.

to individuals; to business

Time limit is 90 days after filing

86
Q

Complex Litigation. 2 questions that help us determine whether joinder is forbidden, permitted, or required.

A

(1) are people already adversaries?

(2) does the cause of action concern the same transaction as the action already being litigated?

87
Q

What must you ALWAYS check when joining a claim or party?

A

SMJ

88
Q

When you join claims under Rule 18 or claims that direct to Rule 18 instructions, do they have to satisfy Venue and PJ?

A

Yes. It’ll be easier if it’s general in personam or residential venue.

89
Q

When joining defendants under Rule 20, do you have to satisfy PJ and Venue?

A

Yes for all Defendants.

why not plaintiffs? well, it can be waived.

90
Q

Compulsory COUNTERclaims, is there a need for PJ and Venue over the plaintiff?

A

No. Venue need not be satisfied, and PJ over P is considered satisfied or waived.

91
Q

Permissive COUNTERclaims, is there a need for PJ and Venue over the plaintiff?

A

Majority: No need.

Minority: Yes need both. seems unfair to the P. (prof)

92
Q

Third-Party complaints, do you need venue and pj over the third party?

A

Venue need not be satisfied.

PJ is necessary over the third party

93
Q

Rule 20. Permissive Joinder of Parties

A

A Plaintiff, may join co-plaintiffs or co-defendants if:

(A) the claims arise out of the same transaction and

(B) any question of law or fact common to all will arise in the action

94
Q

Rule 19. Necessary Party

A

(1) a person whom the court has PJ and doesn’t ruin SMJ, must be joined if:
(a) can’t accord complete relief among parties;
(b) absentee claims an interest that may be

(i) impaired or impeded
(ii) leave an existing party subject to inconsistent obligations

95
Q

What are the 3 considerations when determining a “necessary” party is indispensable party?

A

(1) how necessary are they?
(2) the extent to which any prejudice could be lessened
(3) whether P would have somewhere else to bring the case

if a party is deemed indispensable, the whole case is dismissed without prejudice.

96
Q

Rule 24. Intervention

A

Intervention of Right resembles the necessary party requirements.

One difference is that we consider whether the intervenor’s rights are adequately represented by existing parties

97
Q

Rule 18. Joinder of Claims

A

any party asserting any claim may join any other claims it has against an opposing party.

if you have ONE good cause of action already, throw everything in there.

98
Q

Rule 13(a) and (b): Counterclaims

A

A claim is COMPULSORY if it arises out of the same transaction and the court has SMJ over the action.

A PERMISSIVE counterclaim is the flip side of Rule 18. When an action is brought against a party, that Defending party may join ANY cause of action.

99
Q

Rule 13(g) Crossclaim

A

making a claim against a COPARTY if the claim arises out of the same transaction as the original action or of a counterclaim.

100
Q

Rule 13(h) joining additional parties?

A

Rule 19 Necessary Party

Rule 20 Permissive Joinder of Parties

101
Q

Rule 14. Third-Party Practice (Impleader)

A

A defending party (also applies to P) may bring in a third party who is or may be liable to it for all or part of the claim against it.

102
Q

Supplemental Jurisdiction flowchart 3 steps.

A
  1. Is the claim part of the same constitutional case or controversy?
  2. does the claim fall under the statutory exceptions?
  3. will the court dismiss the claim that has supplemental jurisdiction?
103
Q

What does it mean to be part of the same constitutional case or controversy?

A

as long as the supplemented action has a colorable reason for attachment, it is constitutionally a part of the same case or controversy if it shares a “common nucleus of operative facts” – same transaction

104
Q

Which joinder of claims or parties are probably not part the same case or controversy? (not same transaction) for Supplemental Jurisdiction

A

Rule 13(b) permissive counterclaim;

Rule 18 Joinder of claims that are not necessary under claim preclusion.

105
Q

Statutory exceptions to supplemental jurisdictions. 3 steps.

A

If the core federal action is brought solely under Diversity;

If the claim is brought by Plaintiff (or by Ps joined under Rule 19 or 24);

if the claim is brought against persons made parties under Rule 14, 19, 20, or 24.

105
Q

Statutory exceptions to supplemental jurisdictions. 3 steps.

A

If the core federal action is brought solely under Diversity;

If the claim is brought by Plaintiff (or by Ps joined under Rule 19 or 24);

if the claim is brought against persons made parties under Rule 14, 19, 20, or 24.

106
Q

What are the 4 considerations for the court dismissing a claim that has supplemental jurisdiction?

A
  1. the claim raises novel or complex issues of state law;
  2. the claim predominates the original federal claim;
  3. early dismissal or federal law; or
  4. other exceptional circumstances
107
Q

What happens when a claim is dismisses? (supplemental jurisdiction)

A

a dismissed claim has 30 days, unless State law provides for a longer tolling period.

108
Q

What is a contamination of complete diversity? (supplemental jurisdiction)

A

the original party loses original diversity jurisdiction, so no supplemental jurisdiction

109
Q

Removing Joint federal and state claims

A

when P brings an action of federal law in state court, and there is an unrelated joined action without independent SMJ, the whole thing can be removed to court

110
Q

Attorney-client privilege 4 elements?

A

may be invoked with respect to (1) a communication (2) made between privileged persons (3) in reasonable belief of confidence (4) for the purpose of obtaining or providing legal assistance for the client.

111
Q

Rule 26. Discovery. What can you discover?

A

regarding any “non privileged” matter:

(a) relevant to any party’s claim or defense, and
(b) proportional to the needs of the case (burdensome)

It does not have to be admissible in trial.

112
Q

What is a work product?

A

a party may not discover documents and tangible things that are “prepared in reasonable anticipation” of litigation or for trial “made by or for” another party or its representative (broad)

113
Q

What are 3 considerations to determine whether a work product was “prepared in reasonable anticipation”?

A

specific claim approach
ad hoc approach
primary purpose approach

114
Q

What are 2 key difference between work product and attorney client privilege?

A
  1. attorney client is limited to between privileged persons.
  2. attorney client is never discoverable
115
Q

Are previous statements discoverable?

A

any party or other person may, on request, obtain the person’s own previous statement about the action or its subject matter.

a work product that falls under here is not protected

116
Q

How can work product or attorney client privilege be WAIVED?

A
  1. submitting the materials to the other party

2. bringing the materials into issue with the case

117
Q

Rule 36. Requests for Admission. Who is it for? What is it?

A

Only to parties.

asking the other side to admit.

ambiguities in the evidence almost always allow denial of the request.

authenticity of a document is usually less ambiguous.

118
Q

Rule 33. Interrogatory.

to whom? what is it?

A

Only to party.

A written list of questions that requests answers in writing under oath.

119
Q

Rule 34. Request to Produce

To whom?
What is it?

A

Only to party.

A written request to the opposing party for access to things

120
Q

Rule 30. Deposition

To whom?
What is it?

A

can to both party and witness

deponent testifies orally under oath, answering questions by the lawyer.

depositions are generally not used at trial, unless for impeachment (surprises)

deposition of non-party witnesses is possible with subpoena.

121
Q

Rule 45. Subpoena

to whom?
what is it?
what is the term used to request to bring documents?

A

only to non party witnesses

a writ issued by court to compel testimony by a nonparty witness or production of evidence under a penalty for failure.

subpoena duces tecum

122
Q

Rule 26(a)(2) and 26(b)(4). Expert disclosures.

Which expert info are discoverable?

What should be careful about regarding privileged materials?

A
  • If a party has an expert testimony at trial, it is obligated to hand over to the opposing party a report about the expert and the information the expert relied on to come up with the expert’s opinion.
  • If the relied on information was privileged, it is no longer privileged. In other words, it’s crucial to be careful of the information given to experts in helping them for an expert testimony.
  • If you rely on a non-testifying expert, they are mostly not discoverable, unless the party bought up all the experts.
123
Q

Rule 26(g). Singing (sanctions)

A

Similar to Rule 11

124
Q

Rule 37. Failure to Cooperate in Discovery; Sanctions.

What must the motion to compel include?

A

a motion to compel disclosure or discovery must include a certification that the movant has in good faith attempted to obtain it without court action.

125
Q

Rule 37(c). Failure to Disclose

what comes with the motion to disclose

A

since the opposing party already had an affirmative obligation to disclose, the motion to compel and sanctions come at the same time.

126
Q

What are protective orders?

A

If a party is worried what the opposing party might do with the discovered materials, the party can ask for protective orders that limit the opposing party’s ability to use those materials.

127
Q

What is a burden of pleading?

A

The burden on the pleading party to allege all the necessary elements of a cause of action to avoid dismissal for failure to state a claim.

128
Q

What is burden of production?

A

The burden of providing evidence such that a reasonable jury, using one of the standards of proof, could find in one’s favor

129
Q

What are 3 ways of adjudication PRETRIAL

A
  1. Rule 12(c) motion for judgment on the pleadings

2. Rule 56 summary judgment

130
Q

What is Rule 56. Summary Judgment?

A

dismissal on the basis where movant shows that there is no reasonable jury could find in favor of the non-movant.

131
Q

What materials do summary judgments consider?

A

admissions and affidavits in pleadings.
depositions.
etc.

132
Q

Rule 50. Judgment as a matter of Law. (Directed Verdict)

A

Directed verdict same standard as summary judgment.

133
Q

Rule 50. Judgment notwithstanding the verdict.

What must be done before this?

within how many days?

A

after jury verdict, within 28 days after entry of judgment.

movant must have moved for directed verdict to move for this motion.

134
Q

Rule 59. Motion for a New Trial

A

Raises problems with the trial, usually in evidence or jury instructions; or

verdict is against the evidence - damages are too great - requests a new trial just for the amount

135
Q

Rule 60. Relief from a judgment or order.

A

If a party defaults, he may go to the court that rendered the default judgment in a timely manner and commonly have the judgment set aside.

Otherwise, very rare.

136
Q

What is Claim Preclusion?

A

When P sues D and it comes to a (1) valid (2) final judgment (3) on the mertis, claim preclusion bars P from subsequently bringing suit on actions P did bring or “should have brought” in the earlier suit. Claim preclusion applies when both cases are brought by the same Ps against the same Ds, or in privity with a party.

137
Q

Is an action on appeal considered a final judgment?

A

YES. an action on appeal is considered as a final judgment.

138
Q

Which judgments are not on the merits? (no claim preclusive effect) which are maybe?

A 
SMJ, PJ, Venue
Failure to join a necessary party
voluntary dismissal
prematurity of the action
failure to satisfy a precondition
failure to satisfy motion for more definite statement

maybe—
failure to state a claim (presumptively preclusive - so make sure to be explicit and ask for it to be not preclusive)

twiqbal (was it dismissed for failure to state a claim or motion for more definite statement?)

Statute of limitations (modern, yes.)

139
Q

What are 3 types of tests to determine the scope of claim preclusion?

A

transactional test

primary right test (relevant harm)

evidence test (overlap of operative facts)

140
Q

What is a defendant preclusion?

A

when a defendant tries to undo a judgment in a in a previous lawsuit with a new lawsuit. ALL jurisdictions have defendant preclusion.

141
Q

What are the elements of issue preclusion?

A

If a party (1) fairly and fully and (2) actually litigated an issue that was (3) essential to the decision in an earlier case, he can (with certain exceptions) be barred from relitigating the (4) same issue in subsequent proceedings. Issue preclusion can only be used against someone who was (or in privity with) a party to the earlier case.

142
Q

What are 2 obvious things that are not issue precluded?

A

admission of an issue

and default judgment (practically because you admit everything in a default judgment)

143
Q

What is the last in time rule? (issue preclusion)

A

the last determination of the issue is the one that has the issue preclusive effect.

144
Q

3 elements of nonparty issue preclusion?

A

If a person is (1) a necessary party; (2) knew about the pending case; and (3) didn’t intervene, that person can be issue precluded.

145
Q

What are 4 factors considered for allowing non-mutual offensive issue preclusion?

A
  1. could P in the latter case have easily intervened in the earlier case?
  2. were there inconsistent decisions of an issue in the earlier case?
  3. could D in the latter case have foreseen multiple lawsuits?

4 were there crucial yet unavailable procedural opportunities in the earlier action?

146
Q

What 4 things are already decided to be substantive or procedural? (Erie)

A

substantive: proof of burden; statute of limitations; tolling provision.
procedural: service of process

147
Q

What is Erie? (predictive method)
for substantive law?
for choice of law?

A

When federal court entertains a state law cause of action (statutory and common law) under diversity or supplemental jurisdiction, the federal court applies the state law as it would be interpreted by that state’s supreme court.

Federal court sitting in diversity or supplemental jurisdiction must apply the choice-of-law doctrine of the forum state to choose between the forum state’s law and the other state’s law.

148
Q

What are the 4 tracks? (Erie for choice of law concerning court administration)

A

Constitution; Federal Statute; FRCP.

everything else is under federal common law track.

149
Q

What is the flow chart for the Federal Statute track (Erie)?

A

is the statute “sufficiently broad to cover the point in dispute?”

if so, is the issue rationally classifiable as procedure?

if yes, it applies

150
Q

What is the flowchart for the FRCP track?

A

is FRCP in direct collision (broad for sake of analysis) with the state law at issue?

is it valid? (rationally classifiable as procedure + does FRCP abridge, enlarge, or modify substantive state rights?)

151
Q

What are 3 approaches to figuring out whether a law is substantive? What is the basic?

A

the basic is that if the law at issue is not part of the cause of action (maybe a different state law) NOT substantive.

i) forum law approach: if FRCP “really” regulates procedure, FRCP applies.
ii) rule of thumb approach: if states want their procedure to be substantive, they have to make it obvious; and if states are applying it to sister state’s laws, it may imply the procedure isn’t bound up with the cause of action.
iii) scrupulous approach: the rule at issue must be tied to the purposes of the cause of action

152
Q

What is the flowchart for the common law track

A

is the state rule bound up with the state law cause of action (Stevens and Ginsburg)?

would the difference of state and federal law lead to FORUM shopping at the beginning of the lawsuit in general; and to inequitable administration of laws?

are there strong countervailing federal interest in favor of the federal rule being used that trumps vertical uniformity considerations? (like forum non convenience)

Stay Out (3 decks)

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