Civ Pro Flashcards
1
Q
Requirements for diversity jurisdiction
A
- Complete diversity (each P is a citizen of a different state from each D)
- Amount in controversy exceeds $75,000
2
Q
How is the citizenship of a corporation determined?
A
- Citizen of every state in which it is incorporated
2. Citizen of state where HQ is located (place where high-level officers direct and control)
3
Q
When is citizenship determined?
A
At the time of filing
4
Q
Can P aggregate claim $ to reach the $75k limit?
A
Yes, all claims against the same D (against multiple Ds only if Ds jointly liable)
5
Q
Requirements for federal question jurisdiction
A
Federal courts have original jurisdiction for questions arising under federal law, const, treaties
FQ must appear as part of P’s well-pleaded complaint
6
Q
Can a federal defense create FQ jx?
A
NO. Existence of a defense based on federal law will not create FQ jx.
7
Q
Requirements for supplemental jx
A
Where a P has both fed and state claims, fed ct has discretion to exercise supp jx over state law claim if:
Fed ct has original SMJ over one federal claim, and the claims arise out of a CNOF such that the claims ordinarily be tried in the same proceeding
8
Q
State statutes may authorize PJ on either of several factors:
A
- D’s presence in forum state along with proper service of process
- D’s domicile in the forum state
- Where the D consents to PJ
- Where the state’s long arm statute provides a basis for jx
9
Q
PJ must be….
A
statutorily authorized and constitutional
DP Clause requires that parties receive fair and adequate notice
10
Q
The modern due process standard for PJ focuses on:
A
- contacts
- relatedness
- fairness
11
Q
- Contacts for PJ:
A
There must be sufficient minimum contacts between D and the forum state such that jx is fair and reasonable
- “purposeful availment” (of the benefits and protections of the forum state)
- foreseeability (activities in forum state make it foreseeable for D to be hauled into ct in forum state)
12
Q
- Relatedness for PJ:
A
P’s claim must be related to D’s contacts w/ forum state
13
Q
PJ: specific jx
A
Ct may exercise jx for the complained of cause of action based on the D’s purposeful activities in the forum state
14
Q
PJ: general jx
A
Ct may exercise jx for ANY cause of action if D is “at home” in the jx
15
Q
- Fairness for PJ:
A
Exercise of PJ must not offend the “traditional notions of fair play and substantial justice”
16
Q
Erie Doctrine
A
Federal ct applies state substantive law and federal procedural law in DIVERSITY cases
17
Q
Erie Doctrine Steps:
A
If there is conflict between the state and federal law:
1. is there a federal rule on point (const? stat? FRCP?)
Yes –> apply the federal law if it is “arguably procedural”
No –> apply federal law for procedural matters and state law for substantive
18
Q
How to decide substantive or procedural for Erie?
A
Outcome Determinative Test – an issue is substantive if it substantially affects the outcome
Balance of Interests Test – if the state has the greater interest, than the issue is substantive
Forum Shopping Deterrence – if failing to apply state law would increase litigation in federal court, then the issue is substantive
19
Q
Erie Doctrine
Certain areas deemed to be substantive:
A
- SOL
- rules for tolling SOL
- choice of law
- elements of a claim or defense
20
Q
Test for Impleader
A
D may implead a nonparty only if TPD is or may be liable for all or part of D’s liability to P
21
Q
Rule for Joinder
A
A TPD may assert a claim against the P if the claim arises out of the same transaction or occurrence as P’s original claim
22
Q
What is an entry of default?
A
Default is a notation in the case file by the court clerk, that there has been no answer filed within the time permitted by the rules. It is NOT the same as a default judgment
23
Q
How long does D have to respond to complaint?
A
A D formally served with complaint must respond with MTD or answer within 21 days after service
If r12 MTD is made, then D’s responsive pleading is to be served within 14 days of court’s denial of motion
D who waives formal service, must response within 60 days after request was mailed to D to answer, if does not waive might be liable for service costs
24
Q
When is an entry of default judgment made?
A
when D does not oppose the case, either by failing to plead or to otherwise defend
Once entry is made, D loses ability to contest liability unless D has entry set aside
Can contest damages at hearing
25
When may the CLERK enter default judgment?
1. the amount in dispute is for a sum certain and proved in P’s affidavit
2. D has NOT appeared
26
What is an appearance, for entry of default judgment?
```
An appearance means any formal appearance or any action by the defendant indicating that he intends to contest the merits
Once D has appeared, D must be given notice by first class mail at least 7 days before default hearing (”additiaonl notice”)
```
27
Proper service of process methods
1. personal service
2. abode service
3. service on authorized agent
4. as provided by the rules of the state in which:
- the federal court sits OR
- service is to be made
28
Compulsory counterclaim
Once a TPD is impleaded, TPD must assert any compulsory counterclaims and may assert any permissive counterclaims in the same manner as any other defendant
Compulsory counterclaims arise from the same T/O as P’s claim, must be pleaded as counterclaim or barred
29
Permissive counterclaims
Any other claim by defendant that does not arise from the same T/O as P’s claim is permissive
30
SMJ = court’s power over
Case
31
PJ = court’s power over
Person
32
Two-step PJ analysis
1. PJ must fall within a statute
| 2. PJ must satisfy the Constitution (due process)
33
Constitutional analysis for PJ (step 2)
Does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?
Factors: contact, relatedness, and fairness
34
PJ: contact =
Purposeful availment + foreseeability
35
PJ: Purposeful availment definition
Voluntary act targeting forum (including causing an effect in the forum, even without physical presence)
36
PJ: Foreseeability definition
Foreseeable that D could get sued in that forum
37
PJ: relatedness
Determines whether specific or general PJ
- does cause of action arise from or relate to D’s contacts with forum?
(yes: specific jx/no: need general jx)
- broader than actual causal connection
38
If contacts are related to the case
PJ is “specific PJ” and skip to reasonableness step
39
If contacts unrelated to case
Need general jx (PJ over any cause of action, related or unrelated)
40
Requirements for general PJ
- D must be “at home” in the forum
- human is “at home” in state of domicile
- can also get general PJ over human D if served with process in the forum (“tag jx”)
41
A corporation is “at home” and subject to general PJ in
- state of incorporation
| - state of principal place of business
42
PJ: when is fairness assessed?
When PJ is specific, not general
43
Three fairness factors (specific PJ only)
- burden on D and witnesses
- state’s interest
- P’s interest
44
Notice/Process
consists of two documents
- summons
- copy of complaint
45
As a constitutional matter, notice must be
“reasonably calculated, under all the circumstances, to apprise interested parties of the action.”
46
Who can serve process
- anyone 18+ who is not a party
| - no court appointment necessary
47
When must process be served
- within 90 days of filing (if served within US)
| - may be extended for good cause
48
Options for service on individual
- personal service (in-hand delivery)
- substituted service at D’s usual abode on someone of suitable age and discretion who resides there
- delivered to D’s agent
- state law methods permitted by the law of the state
1. where the federal court sits OR
2. where service is made
49
Options for service on a business or organization
- on officer or agent
- state law methods permitted by the law of the state
1. where the federal court sits OR
2. where service is made
50
Service on a minor or incompetent person in US
-use state law method where service is MADE
51
Service on parties in a foreign country
Still must be reasonably calculated to give notice
- methods allowed by international agreement
- methods allowed by US courts
- methods allowed by foreign country’s law
- methods directed by a foreign official in response to a letter of request
- personal service unless prohibited by foreign country’s law
- mail sent by the CLERK of an American court, as long as signed receipt required, unless prohibited by foreign country’s law
52
Can D waive service of process?
Can D waive service of process?
Yes
P mails to D notice and request to waive service
Must include copy of complaint, 2 copies of waiver form, prepaid means of returning form
53
When waiver of service of process is effective
If the defendant signs and mails the waiver form back to the plaintiff, the plaintiff files the waiver in court; the waiver is effective then
D has to mail back within 30 days, or 60 days if D is outside US
54
Does D waive defenses by waiving service?
NO
55
If D does not return waiver form for service of process
D pays for service costs as a penalty (unless good cause)
56
D is immune from service of process while
appearing in another case (as a party, witness, or attorney)
57
Service of other documents (not process)
These are just delivered or mailed, no summons needed
| Can serve by email if parties agree
58
Cases that state courts cannot hear
Patent, bankruptcy, some federal securities, antitrust
| But they can hear ANYTHING ELSE
59
Two main bases for federal SMJ:
- federal questions
| - diversity of citizenship
60
Can SMJ be waived?
NO
61
Requirements for diversity jx
- right kind of litigants (between citizens of different states or between a citizen of a state and a citizen of a foreign country (alienage))
- amount in controversy exceeding $75k
62
Complete diversity rule for SMJ
no SMJ if any P is citizen of the same state as any D
63
When is diversity determined?
When the case is filed
64
Can a non-US citizen be a citizen of a state for diversity purposes?
No
65
Are permanent resident/green card holders citizens of a state for diversity purposes?
No
66
SMJ: Alienage jx is ____ if a permanent resident is domiciled in the same state as an adverse party
Withdrawn
67
Citizenship of a natural person determined by
- domicile
| - but only ONE domicile at a time
68
How to change domicile
- physical presence in new place AND
| - subjective intent to make new place domicile for foreseeable future
69
How to treat D.C. for diversity purposes?
It is treated as a state
70
Citizenship of a corporation
- ANY state in or country where incorporated AND
| - ONE state or country where principal place of business is located
71
Principal place of business definition
Where corporation’s managers direct, coordinate, and control the business
72
Citizenship of an unincorporated association (partnership, LLC)
-takes on citizenships of all members
73
Citizenship of decedents, minors, and incompetents
Use their citizenship, not that of representative
74
Class action citizenship
Use the citizenship of the named representative
75
Inclusion of interest for $75k requirement
- prejudgment interest NOT included
| - interest as part of claim is included
76
Good faith allegation by P is enough to meet $75k requirement unless
It is a legal certainty that the amount is not possible
77
Aggregation of claims for $75k requirement
- a single P may aggregate all claims against a single D
- multiple Ps cannot do this
- for joint claims: look to the total value of the claim (not aggregation because you are not adding anything, number of parties is irrelevant)
78
Equitable relief for $75k requirement
Amount in controversy is determined by looking at value of relief to P OR D
79
Decline of diversity for SMJ
Federal courts decline actions for divorce, alimony, child custody, probate/estate
80
If P genuine changes citizenship to acquire diversity, is that allowed?
Yes, if genuine
81
Federal question jx
- claim arises from federal law
| - determined by well-pleaded complaint
82
Determining well-pleaded compliant
Ask: is P enforcing a federal right?
83
Removal
Procedure allowing D to move case from state court to federal court
Court will remand if removal improper (send it back to state court)
84
Standard for removal
Case filed in state court could have been brought in federal court (meets diversity or FQ jx)
85
Notice of removal
- filed in federal court, copy in state court
- states grounds for removal
- court permission is not required
- served on adverse parties
86
Timing of removal
-D must remove no later than 30 days after service of the first paper showing case is removable
(usually service of process)
87
Who joins in removal
- All Ds served with process
| - earlier-served D may join later-served D’s removal even if earlier-served D’s 30 days expired
88
Can P’s remove?
NEVER
| even if D files counterclaim against P
89
What cases can be removed?
removal starting point is always SMJ (diversity or FQ)
limits on removal based on diversity:
-cannot remove if any D is a citizen of the forum state (in-state defendant rule)
-cannot remove beyond one after the case was filed (does not apply if D originally joined that D to prevent removal)
90
In-state defendant rule applies to what type of jx?
Diversity (NOT FQ)
91
Removal venue
- case must be removed to the federal court embracing the state court
- doesn’t matter if not proper venue under venue statutes
92
Remand after removal
- P must move to remand within 30 days if defect other than SMJ
- 30-day limit does not apply if federal court lacks SMJ
- lack of SMJ is never waived
93
Supplemental jx
-must have a case already in federal court
step 1: look for SMJ in additional claim (no need for supp jx if there is SMJ over additional claim)
step 2: must arise from same CNOF as claim in existing federal court case
limitation: Ps cannot invoke supp jx in diversity case (there is an exception)
94
same T/O always satisfies ____ test
CNOF
| yolk in the egg!
95
Can P invoke supp jx in a diversity case?
NO
| but there is an exception
96
Exception to the limitation that Ps generally cannot invoke supp jx in a diversity case
The exception to the limitation applies when there are multiple plaintiffs, and the claim by one of them does not meet the amount in controversy requirement
97
Discretion for supp jx
Even if we meet the requirements for supplemental jurisdiction, the court has discretion to decline it. It can do so if the state law claim is complex or state law issues would predominate in the case. But the more likely one is this: It can decline supplemental jurisdiction if the claim on which federal SMJ is based is dismissed early in the case
98
Erie Doctrine steps
Step 1: is there a federal law on point that directly conflicts with state law?
If so: apply that federal law so long as it is valid
Step 2: if no federal law on point: federal judge must apply state law if issue is substantive
Step 3: determine whether issue is substantive
-outcome determinative
-balance interest factors
-avoid forum shopping
99
For Erie, the FRCP are
Presumptively valid if arguably procedural
| None has ever been held invalid
100
Five issues that are clearly substantive for Erie (so the federal court must apply state law)
1. conflict or choice of law rules
2. elements of a claim or defense
3. statutes of limitation
4. tolling of statutes of limitation
5. standard of granting a new trial because the jury’s award was excessive or inadequate
101
Federal common law
Erie means there is no general federal common law. So the general common law of torts, contracts, and property is state law, and federal courts must apply that state substantive law in a diversity case. But there are areas in which federal courts are free to make up common law on their own.
102
Two possible venues for cases initially filed in federal court
- any district where ALL Ds reside (residential venue-there is a nuance) OR
- where substantial part of claim arose or substantial part of property located (transactional venue)
103
Residential venue nuance
- venue proper in any district where D resides if all Ds reside within state
- Ds have to reside in same state
- so if D1 is in ND Cal and D2 is in SD Cal you can file in either
104
Transactional venue
- substantial part of claim must arise in the district
- substantial part does not equal all
- more than 1 district can satisfy requirement
105
If D resides outside US, venue is proper
in any federal district court, but if another defendant does reside in the United States, venue must be proper as to her
106
Where does D reside for venue purposes?
- human resides in federal district where domiciled
| - business resides in all districts where subject to PJ for this case
107
Transfer of venue
Transfer goes from one trial court in a judicial system to another trial court in the SAME judicial system
Original ct is transferror, new ct is transferee
Transferee must be a proper venue AND have PJ over D, without waiver by D
108
Statute 1: Transfer from a proper venue
Convenience of the parties and interests of justice
Burden is on the person seeking transfer (usu D)
The court will consider both public and private factors showing that another court is the center of gravity for the case:
Public: The court will consider things like what law ap- plies, what community should be burdened with jury service, the desire to keep a local controversy in a local court.
Private: The court considers convenience. For example, it will look to where the defendants and evidence are found.
109
Effect on choice of law under transfer statute 1
Transferee court usually must apply choice of law rules of transferor court (unless valid forum selection clause)
110
Effect of forum selection clause under transfer statute 1
- ordinarily enforced if not unreasonable
- unless public interest factors say otherwise (unlikely)
- private interest factors NOT considered
- transferee court applies own choice of law rules
111
Statute 2: original venue is improper
Court will
-transfer if in interest of justice OR
-dismiss
choice of law rules do not travel with the case
112
forum non conveniens
- center of gravity is elsewhere in another judicial system
- stay or dismissal (transfer not possible)
- based on same public and private factors of statute 1 for transfer
- the other court must be deemed available and adequate
113
Pleading contents: complaint must contain
- grounds for SMJ
- short and plain statement showing P is entitled to relief
- demand for relief
114
In stating the claim, P must plead
Sufficient facts to support a plausible claim
115
Special pleading requirements for certain cases
-fraud
-mistake
-special damages
Must be pleaded with more detail: particularity and specificity
116
D’s Response
D must respond by motion or by answer within 21 days (or 60 days if D waived service)
117
Motions addressing issues of form
- 12(e) motion for more definite statement
| - 12(f) motion to strike (any party can move to strike)
118
Waivable defenses under 12(b) (motions to dismiss)
```
these are waived if not put in the first Rule 12 response (motion or answer):
-lack of PJ
-improper venue
-improper process
-improper service of process
THREE Ps AND A V
```
119
Defenses under 12(b) that can be raised later
- failure to state a claim
| - failure to join an indispensable party
120
Lack of SMJ can be raised at what time?
ANY time
121
The Answer
motions are not pleadings, but an answer is
Response to allegations in complaint
-admit
-deny
-lack sufficient information
Failure to deny is an admission (except for amount of damages)
Raise affirmative defenses (waived if not asserted in answer)
122
Plaintiff right to amend
P has right to amend complaint once no later than 21 days after D serves first Rule 12 response
123
Defendant right to amend
D has right to amend ANSWER once no later than 21 days after serving it
(may include 12(b) waivable defense and affirmative defenses in amendment for the first time)
124
Amendments after the time to amend expires
- with court permission if justice so requires
| - allowed unless delayed too long, will prejudice other party, or would be futile
125
Variance
Variance comes up when the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.
126
Amendment after SoL has run (Relation back) to join a claim
Amended pleading treated as if filed on date that original pleading filed
An amended pleading “relates back” if the pleading concerns the same conduct, transaction, or occurrence as the original pleading (that is, the pleading that is being amended).
127
Amendment after SoL has run (Relation back) to join a defendant
-amendment concerns same conduct, transaction, or occurrence
-defendant had knowledge of case so won’t be prejudiced by amendment
-defendant knew or should have known that P made a mistake
---The knowledge referenced in the last two points must have come within the period for service of process (90 days after the filing of the complaint)
(P sued wrong D and right D knew about it)
128
Supplemental pleadings
set forth things that happened after the pleadings were filed. There is no right to file a supple- mental pleading. You must make a motion; whether that motion is granted is within the discretion of the trial court.
129
Rule 11 signature requirement
-applies to all papers except discovery
Rule 11 certification is certifying to the best of your knowledge and belief, after reasonable inquiry, these things are true:
-paper not presented for improper purpose
-legal contentions warranted by law or good argument law should be changed
-factual contentions and denials have evidentiary support
130
Continuing certification
a party makes this certification every time she “presents” a position to the court (for example, when she later advocates a position taken in the document)
131
Sanctions
The purpose of sanctions is to deter a repeat of the conduct. If there is a violation, such as an assertion of a baseless claim, sanctions may be imposed against the party, the lawyer, and/or the lawyer’s firm.
132
May the court raise rule 11 violations sua sponte?
Yes
| By issuing an order to show cause
133
Before imposing sanctions, the court must give the sanctioned party
An opportunity to be heard
134
Types of sanctions
- often non-monetary
| - monetary often paid into the court
135
Safe harbor provision for rule 11
- party seeking sanctions must serve motion on opponent
| - party in violations has 21 days to fix
136
Two joinder requirements generally
- joinder must be allowed by the federal rules
| - there must be SMJ over the case
137
Joinder by plaintiff
- P may join as many claims as P has against D (even if unrelated to original claim)
- must be SMJ over the claim
138
Multiple plaintiffs or defendants--Can join multiple Ps or Ds if
- arise from the same T/O AND
| - raise at least one common question of law or fact
139
Necessary and indispensable parties approach
- is absentee (nonparty) necessary/required?
- can absentee be joined?
- can case proceed without absentee?
140
Is the absentee necessary/required?
Three tests:
- can complete relief be accorded among existing parties?
- [most likely test] will absentee’s interest be harmed? OR
- will D be subject to multiple or inconsistent liability?
141
When are joint tortfeasors necessary?
Never
142
Can absentee be joined?
Feasible if:
- PJ over absentee AND
- federal SMJ over claim by or against absentee
143
What if absentee cannot be joined?
Court must determine whether to proceed or dismiss case
Factors:
-is an alternative forum available
-how likely is actual harm to absentee
-can court shape relief to avoid any harm
144
Indispensable party
Party needed for action to proceed rather than be dismissed
145
Counterclaim definition
Any claim back against the complaining party (usu by D against P)
Response required within 21 days of service
146
Compulsory counterclaim
- arises from the same T/O as P’s claim
| - use it or lose it
147
Permissive counterclaim
- does not arise from same T/O
- not lost- can sue in separate case
- SMJ often the issue
148
Crossclaim definition
Claim against a co-party arising from same T/O
| NEVER compulsory
149
Once d1 asserts a crossclaim against d2, a claim by d2 against d1 is a
Counterclaim
150
Impleader (third-party claim)
- defending party (TPP) brings in new party (TPD)
| - for indemnity or contribution
151
Indemnity
Shifts liability completely (so TPD must cover the full claim)
152
Contribution
Shifts the liability pro-rata (so TPD must cover a pro-rata portion of the claim)
153
Are impleader claims permissive or compulsory?
Always permissive
154
What is the only compulsory claim?
Compulsory counterclaim
155
TPD and P may assert claims against each other that
Arise from the same T/O as the underlying case
| Need SMJ for these claims
156
Is there still diversity if MN sues WI, and WI impleads MN?
Yes, because there is diversity for the MN-WI claim and the WI-MN claim
157
Intervention
A nonparty brings themselves into the case, choosing to come in as either a P or D
158
Intervention of right
If the absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties, intervention is “of right.”
159
Permissive intervention
If the absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive and discretionary with court.
160
Class action requirements
Must have ALL four:
1. numerosity (too many for practicable joinder)
2. commonality (some issue in common to all class members)
3. typicality (rep’s claims are typical of class)
4. adequate representative (rep will fairly and adequately represent class)
CANT
161
Types of class actions
Type 1: prejudice
Type 2: injunctive or declaratory relief
Type 3: common question or damages
162
Type 1: prejudice
Class treatment necessary to prevent harm or prejudice
Ex: one pool of money that will be exhausted, have a class to divide fairly
Very rare
163
Type 2: injunctive or declaratory relief
D treated class members alike
- cannot seek damages
- more likely on exam
164
Type 3: common question or damages
Watch for this one on exam
- common questions PREDOMINATE over individual ones
- class action is superior method for handling dispute
165
Certification by court (class action)
- court defines class, claims, issues, and defenses
- court appoints counsel
- certification is immediately appealable (discretionary with ct app)
166
Notice to class
In a type 3 class action, the court must notify reasonably identifiable class members that they are in a class
Notice paid for by the rep
Inform class members that
-they can opt out
-they will be bound by judgment if they don’t opt out
-can enter separate appeared through counsel
167
No right to opt out of what types of class actions?
Type 1 or type 2
168
Settlement of class action
- only with court approval
- court must give notice to class members and get their feedback on whether to settle/dismiss
- for type 3: court might refuse to approve unless members given a second chance to opt out
169
SMJ in class actions
- FQ may be used
- for diversity, only the citizenship of the rep is considered, and rep’s claim must exceed $75k (no aggregation)
- so if the rep’s claim meets diversity, the class gets diversity
170
CAFA (Class Action Fairness Act)
- special grant of SMJ
- class = at least 100 members
- any class member diverse from any D
- aggregated claims exceed $5mil
- any D may remove
- local actions stay local
171
Initial disclosures
-names, numbers, addresses of people with discoverable information if it might be used to support claims or defenses
-documents (ESI, tangible things) if might be used to support claims or defenses
this only covers information the parties will use to help them
-computation of damages
-insurance coverage
172
Penalty for failure to disclose in initial disclosures
-party cannot use the undisclosed material unless failure to disclose was substantially justified or harmless
173
Required expert disclosures
-ID expert witnesses who may provide testimony at trial
174
Expert witnesses
- consulting experts need not be disclosed absent exceptional circumstances
- testifying experts must be disclosed
- written report by expert must be disclosed
- draft reports and communication are protected work product
175
Expert witness written report contain
- opinions EW will express
- bases for the opinions
- facts used to form the opinions
- EW’s qualifications
- how much EW is paid
176
After the disclosure of an expert witness report, a party may
Depose the EW
| Best practice-subpoena
177
Penalty for failure to disclose expert witness material
Cannot use the EW in the case unless failure was justified or harmless
178
Pretrial disclosures
- 30 days before trial
- identities of witnesses
- documents
- no surprises
179
Generally, parties cannot serve discovery until after
```
Rule 26(f) conference
Minor exception: requests to produce can be served earlier (once 21 days has passed since service of process)
```
180
Deposition
Live testimony of parties or non-parties, given in response to questions by counsel
181
Subpoenas or notice of deposition
- non-parties must be served with subpoena (otherwise not required to attend)
- notice of deposition sufficient for parties
182
Subpoena duces tecum
Subpoena requiring deponent to bring requested materials to deposition
183
Limits on depo of nonparty
Unless a nonparty agrees otherwise, the farthest she can be required to travel is 100 miles from where the nonparty resides or is employed
184
Deposition of an organization
“notice” a deposition of an organization, describing the facts that she wants to discover in the deposition. The organization then must designate a person(s) to testify on that matter
185
Limits on depositions
Unless court orders otherwise:
- no more than 10 depos
- cannot depose same person twice
- cannot exceed one 7-hour day
186
How can depositions be used at trial
- impeach deponent
- for any purpose if deponent is adverse party
- for any purpose if deponent is unavailable, unless the party procured the absence
187
Interrogatories
Written questions to be answered in writing under oath
- only to parties
- limited to 25 (unless court order or stipulation)
- must answer within 30 days
- contention interrogatories are fine (about legal contentions)
188
Requests for production
- asks a party to make available for review and copying documents or things, including electronically stored information (“ESI”), or to permit entry on designated property to inspect, measure, etc.
- respond within 30 days
189
Medical exams
- court order required to compel
- parties only
- health must be in controversy
- good cause
190
Requests for admission
Written request asking opponent to admit facts
- must respond within 30 days
- response: deny, deny knowledge, object, or admit
- reasonable inquiry must be made before answering
- if the party fails to deny a proper request, the matter is deemed admitted
191
Signature requirement for discovery
- parties sign substantive answers to discovery under oath
- Rule 11 does not apply to discovery documents
- there is a certification under another rule: warranted, not imposed for improper purpose, not unduly burdensome
192
Duty to supplement discovery
If new facts come to light after responding to discovery that make a required disclosure, interrogatory, request for production, or request for admission incomplete or incorrect, the party must supplement her response to discovery
193
Scope of discovery
Party can discover anything relevant to a claim or defense and proportional to needs of the case
(unlike initial disclosures, harmful information is discoverable)
194
Discoverable is ___ than admissible
Broader than
195
Protective orders for ESI
- D can move for protective order or object to discovery of ESI
- undue costs are considerations for ESI
- court may allocate costs if good cause to obtain despite costs
196
Privilege and discovery
Party can object to discovery based on privilege
197
Work product
Material prepared “in anticipation of litigation”
| -can be prepared by lawyer, party, expert, investigator etc.
198
Discovery or work product
- must show substantial need and undue hardship (“qualified work product”)
- opinion work product cannot be discovered (“absolute work product”)
199
Withholding discovery
- must claim protection expressly (a-c or work product)
| - must prepare privilege log
200
Inadvertent disclosure of privileged or protected material
notify the other party promptly. The other party then must return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver
201
protective order to enforce discovery rules
- must try to work out without court involvement and certify tried to meet and confer in good faith
- court can deny and order discovery, limit discovery, or permit discovery within terms
202
If a party responds, but not fully, to a discovery request, that party may be
Compelled to comply by court order
203
If a party does not respond at all to a discovery request
Party will be subject to sanctions plus costs
204
Sanctions against a party for partial discovery failure
1. requesting party moves for order compelling discovery
2. opposing party fails to respond to court order
then court can enter merits sanctions and costs and fees
failing party could be held in contempt (NO contempt for refusal of medical exam)
205
Sanctions against a party for total discovery failure
Court can enter merits sanctions plus costs and fees
206
Merit sanctions
-establishment order (establishes facts as true)
-strike claims or pleadings
-disallow evidence
-dismissal or default (ONLY if bad faith)
Judge has discretion in choosing from these sanctions
207
Litigation hold
When litigation is reasonably anticipated, parties must preserve discoverable information
If ESI is TRULY lost: if party failed to take reasonable steps to preserve, court may order measures to cure harm
208
Preliminary injunctive versus TRO
PI preserves status quo until trial
| TRO preserves status quo until PI
209
A court can issue a TRO ex parte if
-applicant files paper under oath clearly showing that they will suffer immediate and irreparable harm if has to wait until the other side is heard AND
-applicant’s lawyer certifies in writing her efforts to give oral or written notice to D or why such notice should not be required
If court issues TRO, applicant must post bond to cover D’s costs if turns out to be wrongful
210
A ruling granting or denying a TRO ordinarily ____ immediately be appealed
MAY NOT
211
content of TRO
- state terms specifically
- describe in detail what D must do/not do
- state why it was issued
- state why threatened injury to P was irreparable
212
TRO timing
- cannot exceed 28 days (14 days plus 14 day extension)
| - treated like a PI after 28 days
213
Factors for preliminary injunction
- irreparable harm
- likely to win on the merits of underlying case
- balance of hardships
- public interest
214
An order granting or denying a preliminary injunction ____ appealed as of right
May be
215
Additional requirements for PI
- As with a TRO, if the court grants the preliminary injunction, the applicant must post a bond.
- Also as with a TRO, the preliminary injunction must state its terms in specificity, describe in detail what the defendant must do or refrain from doing, and state why it was issued.
- In granting or denying the preliminary injunction, the court must make specific findings of fact and separate conclusions of law.
216
Voluntary dismissal
P may withdraw case without court order if D has not filed answers or motion for SJ
File notice of dismissal
Parties may stipulate to dismissal without court order
217
Voluntary dismissal with court permission
- P makes motion for voluntary dismissal
- court has discretion to grant or deny
- first voluntary dismissal is without prejudice
- second voluntary dismissal extinguishes claim
218
Default
- P may seek D’s default if D doesn’t respond to complaint within
- -21 days after service of process
- -60 days if process waived
- not automatic
- P must move for entry of default
- D can respond late until default on record
219
A default is a
notation by the court clerk on the docket sheet in the case
220
effect of an entry of default
The entry of default cuts off the defendant’s right to respond
does not automatically entitle the plaintiff to relief—the plaintiff must seek a default judgment
221
default judgment
```
clerk can enter if
-D made no response (has not appeared)
-claim for sum certain
-P gives affidavit of amount owed
-D is not a minor or incompetent
Hearing and judge’s discretion if clerk cannot enter
Recovery limited by amount in complaint
```
222
If D responds by MTD and MTD is denied, D must
Answer within 14 days of denial
223
Relief from default
Can move to have court set aside if D can show
- good cause
- viable defense
224
12(b)(6) motion to dismiss for failure to state a claim
- court only looks to allegation of facts in complaint
- do these facts, if true, state a plausible claim?
- judge might allow P to amend to try to state a claim
225
FRCP 56 Motion for SJ
SJ weeds out cases where trial is not needed because there is no dispute of material fact
Standard: there is no genuine dispute of material fact AND entitled to judgment as a matter of law
226
Timing of MSJ
No later than 30 days after close of discovery
| Can be for partial SJ
227
What does the court consider in evaluating MSJ?
- can look at evidence (unlike 12b6 MTD)
- looks at evidence in light most favorable to the nonmoving party
- affidavits, declarations, depos, interrogatories
228
Ruling on MSJ can be delayed if
Party needs more time to respond, must state what evidence would be
229
Are pleadings evidence?
NO
| unless verified (under oath) treated as affidavit) (very rare
230
Pleadings to support SJ
- not considered evidence unless verified
| - admissions (D fails to deny allegation in complaint) can be used
231
Does judge assess credibility on SJ?
NO
232
Rule 26(f) conference
-at least 21 days before court’s scheduling order
-detailed discovery plan no later than 14 days after conference
(views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it)
233
Judge or jury?
Actions at law—jury
Actions in equity—judge
Mixed suits—
-facts underlying damages tried first before jury
-then facts relating only to equity claim are tried to judge
234
Seventh amendment
preserves the right to jury in “civil actions at law,” but not in suits at equity
doesn’t apply in state court, only federal civil cases (not incorporated to the states)
235
jury demand
party must demand the jury in writing no later than 14 days after service of the last pleading showing a jury triable issue (usually the answer)
236
jury selection
- void dire
- unlimited challenge for cause
- generally 3 peremptory challenges (MUST be used in a race and gender neutral manner, because jury selection is state action)
237
Number of jurors
Min 6 max 12 unless parties agree otherwise
238
Objection to jury instructions
- judge must tell parties what instructions it will give and what instructions were refused
- party must object on the record
- objection must be before jury charged or it is waived
239
3 types of verdicts
- general: who wins and what relief
- special: jury answers questions, no bottom line (judge will give bottom line)
- combination: general with written questions
240
Entry of judgment
General verdict: clerk of court enters the judgment
Special verdict: if the answers are consistent with each other and with the verdict, the judge approves the judgment and the clerk enters it
241
Inconsistency between general verdict and written questions
In a case involving general verdict with written questions, if the answers are consistent with each other but inconsistent with the verdict, the court may enter an appropriate judgment consistent with the answers. (Or it can tell the jury to reconsider or order a new trial.)
If the answers are inconsistent with each other and one or more is inconsistent with the general verdict, no judgment may be entered. (Again, the court may order the jury to reconsider or order a new trial.)
242
Juror misconduct
In general, a verdict may be “impeached” based upon “external” matters
Verdict will not be set aside if misconduct was harmless
243
Bench trial
- judge must record her findings of fact AND separately record conclusions of law
- judgment must be entered
244
Motion for judgment as a matter of law
- aka directed verdict
| - case will not go to the jury, judge grants the motion and enters verdict based on evidence presented at trail
245
Standard for JMOL
- this motion comes up AT trial, not before
- reasonable people could not disagree on result (court views evidence in light most favorable to non-moving party
- motion can be made after the opposing party has been heard on the issue
246
Renewed Motion for judgment as a matter of law (RJMOL)
- comes up after trial, after jury returns verdict
- same standard as JMOL
- timing: 28 days after entry of judgement
- can only be made if a JMOL was made
247
Motion for new trial
-timing: 28 days after entry of judgement
-it’s a do-over because something at trial requires it
Potential reasons: judge gave erroneous jury instruction, new evidence that could not be discovered before with due diligence, misconduct by juror/party/lawyer, against the weight of the evidence, damages inadequate or excessive
248
Remittitur
- jury’s damage figure shocks the conscience
- P remits portion of damages or undergoes new trial
- both state and federal court
- court cannot simply lower amount, that would violate 7A
249
additur
- jury’s damage figure shocks the conscience
- add to damages or D undergoes a new trial
- NOT in federal court
250
Remittitur is allowed in ____ and additur is allowed in ____
State and federal courts
State courts only
(r-sf, a-s)
251
Offer of judgment
- D can submit formal offers to settle the case up to 14 days before trial
- the rule contains cost-shifting provisions that apply when a plaintiff rejects an offer to settle and doesn’t do as well at trial as the offer (litigation costs after the offer was made)
252
Motion for relief from order or judgment/motion to set aside
Motion for relief from order or judgment/motion to set aside
After a judgment is entered, it is possible to obtain relief from it under certain circumstances:
-clerical error: any time
-mistake/excusable neglect: reasonable time not more than 1 year
-fraud/misrepresentation/misconduct: reasonable time not more than 1 year
-newly discovered evidence existing at time of trial and could not have been discovered with due diligence: reasonable time not more than 1 year
-judgment is void: reasonable time (no upper time limit)
253
Final judgment rule
- losing party has right to appeal if court’s order is a final judgment
- final judgment wraps up entire case
- ask: does the trial court have anything left to do on the merits of this case?
254
Is denial of SJ a final judgment?
No
| Court still has stuff to do with merits- trial!
255
Is the granting of a new trial a final judgment?
No
| Court still has stuff to do with merits- new trial!
256
Is denying a motion for new trial a final judgment?
Is denying a motion for new trial a final judgment?
Yes
Court has nothing left to do on the merits
257
Notice of appeal must be filed
In the district court within 30 days after entry of judgment that is appealed
258
Appeal of injunctions and TROs
- orders related to injunctions may be appealed
| - a TRO is not an injunction (but TRO beyond 28 days becomes PI)
259
Interlocutory Appeals Act
Allows for appeal of nonfinal order if trial judge certifies controlling issue of law with substantial ground for differing opinons
Court app has to agree to hear it
260
Collateral order doctrine
Appellate court has discretion to hear appeal on an issue if:
-distinct from the merits of the case
-involves an important legal question
-essentially unreviewable if parties await final judgment
VERY RARE (ex: state highway dept immunity from suit)
261
Multiple claims and parties
- judge wraps up case as to some claims or parties
- not a final order if there are other claims or parties
- court may direct entry of final judgment and expressly find no just reason to delay appeal
262
Appeal of class action certification order
- ct app has discretion
| - first filing is at the court of appeals within 14 days of order
263
Extraordinary writ (mandamus or prohibition)
- original proceeding in ct app
- compel the district judge to make or vacate a particular order
- only available if district court violating clear legal duty
264
Standards of review on appeal
Questions of law: reviewed de novo (no deference given to trial judge on questions of law)
Judge’s determination of fact (bench trial): “clearly erroneous” standard
Jury’s determination of fact: ct app will affirm unless reasonable people could not have made that finding (ton of deference)
Judge’s rulings on discretionary matters: “abuse of discretion” standard
No reversal required if harmless error
265
If Case 1 and Case 2 are in different judicial systems, the court in Case 2 applies the preclusion law of
the judicial system that decided Case 1
266
Claim preclusion (res judicata)
Claimant may sue only once to vindicate a claim
267
Claim preclusion requirements
1. same P v. same D
2. valid final judgment on merits (most things unless based on lack of jx, improper venue, or failure to join indispensable party)
3. Case 1 and Case 2 must be the “same claim”
268
valid final judgment on merits for claim preclusion
most things unless based on lack of jx, improper venue, or failure to join indispensable party
269
same claim for claim preclusion
majority: same T/O
minority: primary rights view = separate claims for personal injury and property damage, even if same T/O (theory is that these invade different rights)
270
issue preclusion (collateral estoppel)
- narrower than claim preclusion
- issue was litigated in case 1, same issue is presented in case 2: if issue preclusion applies, the issue cannot be relitigated in case 2
271
Five requirements for issue preclusion
1. case 1 ended in valid, final judgment on the merits
2. same issue actually litigated and determined in case 1
3. issue was essential to judgment in case 1 (finding on the issue is the basis for the judgment)
4. due process factor (issue preclusion can only be used AGAINST previous party, or someone in privity with them)
5. mutuality (whether issue preclusion can be used BY someone who was not a party)
272
Nonmutual defensive issue preclusion
The person using preclusion was not a party to Case 1 and is the DEFENDANT in Case 2
273
Nonmutual offensive issue preclusion
The person using preclusion was not a party to Case 1 and is the PLAINTIFF in Case 2
274
Nonmutual defensive issue preclusion okay if
The person used NDIP used against had a full chance to litigate in case 1
275
Nonmutual offensive issue preclusion okay if
Most states say not okay
Some states/fed say okay if fair
Fairness factors:
-whether party to be bound had a full and fair opportunity to litigate in case 1
- whether party to be bound had a strong incentive to litigate in case 1
-whether party asserting issue preclusion could have easily joined case 1
-whether there have been inconsistent findings on the issue
