Civ Pro Flashcards
1
Q
Personal jurisdiction (“PJ”) is about the court’s power over …
A
The parties
2
Q
The plaintiff has _ to PL
A
Consented
3
Q
Two-steps of PJ analysis:
A
The exercise of PJ must first fall within a state statute, and the exercise of PJ must satisfy the Constitution (due process).
4
Q
A “long arm” statute…
A
grants PJ over nonresidents who perform or cause certain things within the state.
5
Q
For the constitutional analysis of PJ, we ask
A
Does the defendant have
such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?
6
Q
Factors of constitutional PJ inquiry:
A
- Minimum Contacts (purposeful availment and foreseeability that the def. could be sued in the forum)
- Relatedness (Does Plaintiff’s claim arise from or relate to Defendant’s contact with the forum?) (specific v. general)
- Fairness = for specific PJ only
7
Q
Can the defendant “purposefully avail” under PJ without setting foot in the forum?
A
Yes, by causing an effect in the forum.
8
Q
Types of PJ relatedness
A
If Plaintiff’s claim arises from
or relates to Defendant’s contact with the forum? = specific PJ
If not = neeed general PJ
9
Q
How Do We Test for Relatedness (for PJ)?
A
If actions “caused” harm = met
If Defendant’s contact did not clearly cause the injury to Plaintiff? = If Defendant has substantial contact with the forum state, relatedness is satisfied if the claim merely relates to Defendant’s contacts with the forum.
10
Q
If general PJ exists, Defendant can be sued in the forum on a claim that arose…
A
anywhere in the world
11
Q
To have general PJ, the defendant either must be …
A
at home in the forum or must have registered to do business in the state and have appointed an agent for service of process there, assuming that state law authorizes general personal jurisdiction on this basis.
OR if Defendant is served with process in the state (tag jurisdiction)
12
Q
Where is a human always “at home”? (for PJ)
A
A human is “at home” where she is domiciled.
13
Q
Where is a corporation subject to general PJ?
A
In any state that allows PJ to be exercised on registration with the state.
Failing that, the company must be “at home” in the forum. Where is a corporation always “at home”? (1) The state in which it is incorporated; and (2) the state in which it has its principal place of business (“PPB”).
14
Q
The fairness factors are addressed in __ only.
A
specific PJ cases
15
Q
Fairness factors for PJ:
A
- Burden on the defendant and witnesses:
- Due process does not guarantee that suit will be in the most convenient forum for the defendant.
- The forum is constitutionally OK unless the defendant can show that it puts her at a severe disadvantage in the litigation.
- Relative wealth of the parties is not determinative. - State’s interest
- The forum state may want to provide a courtroom for its citizens who are allegedly being harmed by out-of-state defendants. - Plaintiff’s interest
- The plaintiff is maybe injured in the forum state and/or wants to sue at home
16
Q
As a constitutional matter, notice must be “…
A
“reasonably calculated, under all the circumstances, to apprise interested parties of the action.”
17
Q
In a regular lawsuit, notice consists of two documents:
A
(1) a summons, which is formal court notice of suit and the timing for response; and (2) a copy of the complaint.
-> Together, these two documents are sometimes called “process.”
18
Q
Any person who is __ may serve process.
A
at least 18 years old and not a party to the action (generally the process server need not be appointed by the court but some state courts require appointment by the court.)
19
Q
If the defendant is to be served within the United States, service must take place within
A
90 days of the filing of the complaint. (This period
may be extended for good cause).
20
Q
Options for how process is served on an Individual Within the United States:
A
- Personal Service
- Substituted Service
- Service on Agent
- State Law Methods
- Note: There is no preference between these methods
21
Q
For indiviual personal service, process is given to the defendant personally __
A
anywhere.
22
Q
Substituted service on an individual can be done only
A
(1) at the defendant’s usual place of abode; (2) with someone of suitable age and discretion; (3) who resides there (doesn’t need to be related).
23
Q
For substituted service must the defendant reside there every day of the year for it to qualify
as her “usual place of abode”?
A
No. It’s a common sense determination. (i.e., cottage counts in the summer)
24
Q
Process can be delivered to the individual defendant’s agent if
A
receiving service is in scope of agency
25
For both individuals and businesses methods for serving process that are permitted by the
law of the state where __ are permitted.
(1) where the federal court sits or (2) where service is
made
- Note: Some states permit service by mail
26
A business or organization may be served by:
- Delivering to an officer (for example, president, treasurer) or a managing or general agent a copy of the summons and of the complaint, or
- Using a method permitted by the state: (1) where the federal court sits or (2) where service is to be made
27
Service on a minor or incompetent person may be made only ___
by a method permitted by the law of the state in which service is to be made.
28
Service on Parties in a Foreign Country
(1) A method allowed by international agreement (for example, the Hague Convention) may be used.
(2) If there’s no such agreement on the options (subject to the constitutional requirement that the method must be reasonably calculated to give notice) are:
- As directed by the American court; or
- Method allowed by the foreign country’s law; or
- Method directed by foreign official in response to a letter of request (letter rogatory) from the American court; or
- Personal service in the foreign country (unless prohibited by its law); or
- Mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by the foreign country’s law). (NOT MAIL BY PARTY!)
29
A defendant can waive service of process. To request this waiver, the plaintiff mails the defendant a notice and request to waive service. The plaintiff must ___
include a copy of the complaint and two copies of a
waiver form, with a prepaid means of returning the form
30
If the defendant executes and mails the service waiver form to the plaintiff within ___ she waives service of process.
30 days (60 days if the defendant is outside the U.S.)
31
Waiver of service can be used for individuals and entities___
individuals and entities
32
A defendant who waives service of process __ waive any defenses like lack of PJ.
does not
33
When is the Waiver of service 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.
34
Penalty for Failing to Waive Service
If the defendant did not have good cause for failing to return the waiver form, the defendant must pay the costs of service.
35
PROVING SERVICE OF PROCESS
Unless service is waived, the process server files a report with the court detailing how service was made.
- If the server was a civilian, the report is by affidavit (sworn statement, under oath).
36
The failure of the process server to file their report ___
does not affect the validity of service
37
GEOGRAPHIC REACH OF SERVICE OF PROCESS
- Process may be served within the state in which the federal court sits.
- It may be served outside that state if state law allows
38
Immunity from Service
If the defendant goes to State X to appear as a party, witness, or attorney in a different civil case in State X, the defendant cannot be served with process for a civil case in federal court in State X.
39
SERVICE OF documents other than the complaint/summons
Other documents, such as an answer, other pleadings, motions, and discovery, are “served,” but we don’t need a summons or to do it so formally.
- We serve these documents by delivering or mailing
the document to the party’s attorney or to a pro se party, that is, someone who is proceeding without a lawyer.
40
Can you serve documents other than the complaint/summons by email?
Yes, if the parties agree.
41
Where service of documents other than the complaint/summons is done by mail ___
three days are added to the period to respond (30 days) because they are mailed.
42
Subject matter jurisdiction (“SMJ”) is about the court’s power over ___
the case, and not over the parties.
43
As a general rule, state courts can hear ___
any kind of case (general subject matter jurisdiction)
44
Cases that State Courts Cannot Hear
There are a few federal cases that state courts cannot hear, such as patent infringement, bankruptcy, some federal securities, and antitrust claims (congress took jurisdiction away explciitly)
- But most cases arising under federal law can be heard by state courts.
45
The two main types of cases that can be heard in federal court are ___
federal question (“FQ”) jurisdiction and diversity of citizenship jurisdiction, which includes the so-called “alienage” jurisdiction.
46
A lack of SMJ (unlike a lack of PJ) ___
cannot be waived. If it does, the judgment is void.
47
There are two requirements for diversity of citizenship(or alienage) cases:
(1) The case is either (a) between citizens of different U.S. states (diversity); or (b) between a citizen of a U.S. state and a citizen of a foreign country (alienage); and
(2) The amount in controversy exceeds $75,000.
48
Complete Diversity Rule
Diversity of citizenship jurisdiction does not exist if any plaintiff is a citizen of the same state as any defendant; this is the complete diversity rule. (look at the sides of the v)
49
Whether there is diversity is determined when ___
the case is filed
50
Two foreign nationals suing each other ___ sue each other in state court.
Can
51
Is a green card holder a resident of a state for diversity purposes?
NO = But can invoke alienage (but even then alienage jurisdiction is withdrawn if permanent resident is domiciled in the same state as an adverse party)
52
Is a US citizen living abroad a citizen of a state for diversity pruposes?
No, and also not alienage
53
The citizenship of a person who is a U.S. citizen is the ___ U.S. state in which she is domiciled
one, a person can have only one domicile. There is no such thing as a person without a domicile; everyone has a domicile.
54
That domicile is retained until ___
it is changed.
55
How do you establish a new domicile?
It takes two things: (1) physical presence in
the new domicile and (2) the intent to make that place your home for the indefinite future.
56
For intent to change domicile, courts look to all relevant factors including
taking a job, buying a house, joining civic organizations, registering to vote, qualifying for in-state tuition, etc.
57
Is DC a state for diversity purspoes?
Yes!
58
A corporation is a citizen of __
any state or country in which it is incorporated and of the one state or country in which it has its principal place of business (“PPB”)
59
Where is the corporation’s PPB?
It is the state from which the corporation’s managers
direct, coordinate, and control business activities (nerve center test)
60
Citizenship of an Unincorporated Association
An unincorporated association takes on the citizenships of all of its members.
- If it’s a limited partnership, you include the citizenships of general and limited partners.
61
Decedents, minors, and incompetent persons must sue or be sued through a representative. The representative’s citizenship is __
irrelevant. You use the citizenship of the decedent, minor, or incompetent.
62
For class actions, the citizenship of ___ of the class is used for diversity purposes
the named representative(s)
63
The Amount in Controversy Requirement is
must EXCEED $75,000 (equal to not enough!)
64
What is included in the Amount in Controversy?
Only the claim itself is considered. Litigation costs or interest on the claim are not included (but if the claim is for the interest itself that you are suing to collect that is ok = but not interest from the delay of payment due to the litigation)
65
The claim itself must exceed $75,000 for diversity. Whatever the plaintiff claims in good faith is OK unless ___
it is clear to a legal certainty that she
cannot recover more than $75,000. Ex post amount doesn't control.
66
For purposes of meeting the jurisdictional
amount, any single plaintiff may aggregate ___
all of her claims against a single defendant (the claims need not be related).
67
For diversity can't aggregate the claims of ____
multiple PL's against one def
68
Under diversity for joint claims you can use the total value of the claim. With joint claims ____
the number of parties is irrelevant (know how much you will recover just not sure who will pay)
69
How do we determine if the amount in controversy has been satisfied for equitable relief?
There are two tests; if either is met, most courts find that the amount in controversy is satisfied.
- One test looks at the plaintiff’s viewpoint. If granted, does the relief requested have a value of more than $75,000 to the plaintiff?
- The other test looks at the defendant’s viewpoint. If granted, will the relief requested by the plaintiff cost the defendant more than $75,000?
70
Even if the requirements for diversity or alienage jurisdiction are met, federal courts decline to hear actions for ___
divorce, alimony, child custody, and actions to probate an estate (not all family matters, just these specifically!)
71
If a party attempts to create diversity by a sham transaction, such as assigning a claim for collection purposes merely to create diversity SMJ, the courts ____
ignore the transaction and declare that diversity does
not exist.
72
A plaintiff can create diversity by changing her state citizenship after the cause of action accrued but before suit is commenced. Is this ok?
If it is a genuine change of citizenship, diversity is OK.
73
For there to be federal question (“FQ”) jurisdiction, the plaintiff’s claim must ___
“arise under” federal law (for example, the claim must arise under the federal constitution or federal legislation).
74
For FQ cases what factors don't matter:
- The citizenship of the parties is not relevant;
- The amount in controversy is not relevant
75
The FQ “well pleaded complaint” rule provides that
it is not enough that some federal issue is raised by the complaint. The plaintiff’s claim itself must “arise under” federal law.
-> Ask if the plaintiff is enforcing a federal right.
76
Assume that a plaintiff sues a defendant in state court, but that the defendant would prefer to litigate in federal court. The defendant might be able to ___ the case to federal court
“remove”
77
If removal was improper, the federal court can ___ the case to state court.
“remand”
78
Generally, an action originally filed in a state court may be removed by a defendant to federal court when ___
the case could have been filed in a federal court (that is, federal question or diversity jurisdiction
exists).
79
Even when the state court has no jurisdiction because the action is exclusively federal, ___
the federal court may hear and decide the case under its removal jurisdiction.
80
How a Case Is Removed
- The defendant files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ).
- Permission of the state or federal court is not required.
- The defendant attaches all documents that were served on her in the state action.
- The defendant then “promptly” serves a copy of the “notice of removal” on adverse parties and files a copy of the “notice of removal” in state court.
81
Timing of Removal
The defendant must remove no later than 30 days after service (not filing) of the first paper that shows the case is removable.
-> Usually, that means no later than 30 days of service of process.
82
Who Must Join in the Removal?
- All defendants who have been served with process must join in removal.
- They need not join in the same document; they can file separate notices of removal.
83
If defendants are served at different
times, and a later served defendant initiates timely removal, the earlier served defendant ___
may join in the removal even though her 30-day period for initiating removal may have expired.
84
Plaintiffs can ___ remove.
never, never ever
-> This is true even if the defendant files a counterclaim against the plaintiff that, by itself, could be heard in federal court
85
Limitations to removing a case based solely
on diversity of citizenship:
(1) The case should not be removed if any defendant is a citizen of the forum state (the “in-state defendant rule”);
(2) The case should not be removed more than one year after the case was filed in state court
86
When could the one-year limitation on removing a diversity case apply?
A diversity case with an in-state defendant (or with a non-diverse defendant) can become removable later. How? -> The case becomes removable when the claim against the in-state defendant (or the non-diverse defendant) is voluntarily dismissed from the case.
87
Exception to the one year diversity removal rule if ___
pl. intentionally joined parties to prevent removal
88
Removal Venue
The defendant removes to the federal district court “embracing” the state court where the case was filed.
-> It does not matter if this venue would have been proper under the venue statutes.
89
If the plaintiff thinks the case should not have been removed, she moves to remand to state court. If the motion to remand is based on a reason other than lack of SMJ (for example, the one-year limitation
on the removal of a diversity case), she must move to remand no later than ___
30 days after the filing of the notice of removal.
-> If the plaintiff fails to do so, she waives the right to have the case remanded to state court and the case will stay in federal court.
90
If removal was improper because the federal
court lacked SMJ, there is ___ on ordering remand.
no time limit
91
Diversity and FQ SMJ get cases into federal court. Supplemental jurisdiction ___
does not. Instead, it gets claims into a federal case, even though the claims cannot use
diversity of citizenship or FQ SMJ.
92
Starting point for supplemental SMJ
Instead, it gets claims into a federal case, even though the claims cannot use diversity of citizenship or FQ SMJ
93
The federal court must have SMJ over ___
every single claim in a case.
94
Steps to analyzing SMJ of additional claims:
Step 1: Check for Diversity or FQ Jurisdiction over
the Additional Claim
Step 2: Check for Supplemental Jurisdiction If No
Diversity or FQ
95
Steps to Supplemental SMJ analysis:
1. The claim that we want to get into federal court must share a “common nucleus of operative fact” with the claim that satisfied federal SMJ
- Same T/O (yolk) satisfies but the test is broader (egg)
96
Limitations on supplemental SMJ applies only in cases that got into federal court through ___
diversity jurisdiction.
97
Limitation on supplemental SMJ
In diversity cases, claims by plaintiffs generally cannot invoke supplemental jurisdiction.
98
Exception to the Limitation on supplemental SMJ by plaintiff in diversity case
When there are multiple plaintiffs, and the claim
by one of them does not meet the amount in controversy requirement.
-> Any other time a plaintiff has an additional claim in a diversity case, it cannot invoke supplemental jurisdiction.
99
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.
100
Erie: What law to apply in diversity cases, analysis
Step 1. Ask: Is there some federal law (like the Constitution, federal statute, Federal Rule of Civil Procedure, or Federal Rule of Evidence) on point that directly conflicts with state law? (On-point FRCP governs so long as it is valid and arguably procedural.)
-> If so, apply the federal law, as long as it is valid.
Step 2. If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.”
- List of five that are always substantive
Step 3. If there is no federal law on point and the issue is not one of the five just listed above, the federal judge must determine whether the issue is “substantive.”
101
Five issues that are substantive and the state law should be applied under Erie:
1. Conflict (or choice) of law rules;
2. Elements of a claim or defense;
3. Statutes of limitation;
4. Rules for tolling statutes of limitations; and
5. The standard for granting a new trial because the jury’s damages award was excessive or inadequate.
102
Do state SOL's always apply in federal court becuase they are substantive?
No! True, a federal judge applies forum state law (and not federal law) in a diversity case. But that doesn’t necessarily mean that the forum’s statute of limitation automatically applies.
-> This is because the federal judge must
also apply the forum state’s conflict of law rules to determine which state statute of limitation to apply.
- Some states will call the statute of limitation issue “procedural,” allowing the forum state to apply its own statute rather than that of another state.
103
If there is no federal law on point and the issue is not
one of the five just listed above, the federal judge must determine whether the issue is “substantive.” Factors:
- Outcome determinative
- Balance of interests
- Avoid forum shopping
104
Erie means there is no ____ federal common law.
general
- 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.
105
Even though Erie said there is no general CL, there are areas in which federal courts are free to make up common law on their own.
International relations, admiralty, disputes between states, the right to sue a federal officer for violating one’s federal rights. (no role for state law in these contexts)
106
Subject matter jurisdiction told us when we can take a case to federal court. Venue tells us exactly where
to bring it, that is, in which federal court to bring it.
107
The plaintiff may lay venue in any district where:
(1) All defendants reside (residential venue); (with one nuance = where all def's live in the same state = can do any district in that state) or
(2) A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).
- Note: These provisions above do not apply if the case was removed from state to federal court. (just goes to federal venue where the state court was)
108
Where Claim Can Arise for Transactional Venue
A substantial part of the claim can arise in more than one district.
109
110
For venue purposes, it ___ where the plaintiff resides.
does not matter
111
If the defendant resides outside of the United States, venue is proper in ___, but if another defendant does reside in the United States, venue must ___
any federal district court; be proper as to her.
112
WHERE humans “RESIDEs” FOR VENUE PURPOSES
A human “resides” in the federal district where she is domiciled.
113
WHERE business's “RESIDEs” FOR VENUE PURPOSES
A business, such as a corporation or unincorporated association, resides in all districts where it is subject to PJ for the case.
114
Transfer goes from one trial court in a judicial system to another trial court in the ___
same judicial system.
- So a federal district court may transfer the case to another federal district court, but it cannot transfer a case to a state court.
115
Courts can transfer if
transferee must be a proper venue and have PJ over the defendant—and generally those must be true without waiver by the defendant.
116
Exception to no consent rule for improper venue transfer
the court can transfer to any district (even an improper venue) if ALL parties consent (unlikely) and the court finds cause for the transfer.
117
If the original district is a proper venue, that court ____
can order transfer based on convenience of parties and witnesses and in the interests of justice.
118
For transfer from proper venue the burden is on ___
the person seeking transfer (usually the defendant).
119
For transfer from proper venue 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 applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court.
- Private: The court considers convenience.
120
Effect on choice of law when a diversity case is filed in a proper venue but the court orders
transfer
the transferee court must apply the choice
of law rules of the transferor court (unless transfer is to give effect to a valid forum selection clause)
121
Federal law enforces forum selection clauses if ___
they’re not unreasonable. Some
states do not. But in federal court, federal law governs transfer.
122
When there is a valid forum selection clause, only ___ are considered for transfer
public interest factors (not private = dealt with in the contract)
123
When transfer is to enforce a forum selection clause, the transferee court will apply ___
its own choice of law rules (the transfer does not carry the transferor court’s choice of law rules with it)
124
If the original district is an improper venue, the court ___
may transfer in the interest of justice or dismiss.
125
When the federal court transfers a diversity case because the original venue is improper, the transferee applies ___
its own choice of law rules, that is, the choice of law rules of the state in which it sits, and not the choice of law rules of the transferor court.
126
Like transfer ___ applies when there is another court that is the center of gravity for the case. But here, the court cannot transfer the case to that court because it is in a different judicial system.
forum non conveniens (“FNC”)
127
The court invoking forum non conveniens ___.
will stay (hold it in abeyance) or dismiss the case
- Whether the court dismisses or stays, the idea is that the plaintiff will then sue in the other court, and the court may impose conditions on the party
requesting transfer such as requiring her to waive service of process.
128
The forum non conveniens decision is based ___
on the same public and private factors as transfer above, including the existence of a valid forum selection clause.
129
For forum non conveniens the other court must be ___
available and “adequate.” = usually, the
forum will be adequate unless the plaintiff can get no remedy there
130
In federal court, the ___ commences an action.
filing of the complaint
131
The complaint must contain:
a. A statement of grounds of subject matter jurisdiction;
b. A short and plain statement of the claim showing that the plaintiff is entitled to relief; and
c. A demand for relief sought (for example, damages, injunction, declaratory judgment).
- The plaintiff need not allege grounds for PJ or venue.
132
In stating the claim, the plaintiff must plead ____
sufficient facts to support a plausible claim.
- To determine plausibility, the judge uses her own experience and common sense.
133
___ must be pleaded with more detail; that is, with ___
Fraud, mistake, and special damages; particularity or specificity.
134
Rule 12 requires the defendant to respond in one of two ways:
(1) by motion or (2) by answer.
135
To avoid default, the defendant must do
one of these two things no later than ___ after being served with process. If the defendant waived service, the defendant has ___ from when the plaintiff mailed the waiver form to respond.
21 days; 60 days
136
Motions are not pleadings; they are ___
requests for a court order.
137
Rule 12 motions addressing issues of form.
- A Rule 12(e) motion for more definite statement is used when the complaint is so vague or ambiguous the defendant simply cannot respond; must make this motion before answering;
- A Rule 12(f) motion to strike asks the court to remove redundant or immaterial things from a pleading (that is, a complaint, an answer,
etc.); and Any party can move to strike (for example, a defendant moves to strike allegations of fraud or plaintiff moves to strike an affirmative
defense).
138
Some Rule 12(b) defenses that are waived if not put in the first Rule 12 response (motion or answer).
- A lack of personal jurisdiction;
- Improper venue;
- Improper process (a problem with the papers); and
- Improper service of process
139
Some defenses under Rule 12(b) are not waived even if they are not included in the first response. They are:
- A failure to state a claim and a failure to join an indispensable party.
--> These motions can be made as late as at trial.
- A lack of subject matter jurisdiction may be raised at any time.
140
If the defendant makes a motion to dismiss under Rule 12 and it is denied. She must serve her answer no later than ____
14 days after notice of the denial.
141
An answer is a pleading. The defendant does two things in the answer
(1) Respond to the Allegations in the Complaint: The def. amy:
- Admit some or all allegations;
- Deny some or all allegations; and
- State that she has insufficient knowledge to admit or deny some or all of the allegations
--> This has the effect of a denial, but a party cannot do this if the answer to the allegation is in her control.
(2) Raise Affirmative Defenses
- Affirmative defenses inject a new fact into the case that would allow the defendant to win.
- Rule 12(b) defenses can be pleaded as affirmative
defenses.
142
The failure to deny an allegation in the answer is an ____
admission except regarding the amount of damages.
143
If the defendant fails to assert an affirmative defense in the answer, the court ___
may treat it as waived subject to the timing rules in Rule 12.
144
When the defendant asserts an affirmative defense, there is ___
no need for the plaintiff to respond, as the allegations in the defendant’s answer are deemed denied.
145
AMENDED PLEADINGS—FOUR FACT PATTERNS
1. Right to amend
2. Amendment After “Right to Amend” Has Expired
3. Variance
4. Amendment After Statute of Limitations Has Run
(“Relation Back”)
146
Right to Amend By Plaintiff
The plaintiff has a right to amend her complaint once as of course no later than 21 days after the defendant serves her first Rule 12 response.
147
Right to Amend By Defendnat
The defendant has a right to amend his answer once as of course no later than 21 days of serving it
148
If the defendant’s first response was an answer, in which he forgot to raise “waivable defenses” and forgot to raise an affirmative defense, he has a right to amend his answer to ___
include the “waivable defenses” and the affirmative defense.
149
After the period to amend as of right, the amending party must ___.
seek leave of court (or get the written consent of the opposing party)
- The court will grant leave to amend if “justice so requires.” (considering Length of delay, prejudice to the other party, and futility of amendment.)
150
Variance comes up when the evidence at trial does not match what was pleaded. If ___, the party introducing the evidence may ___
the other party fails to object at trial; move to amend the complaint to conform to the evidence.
151
Amendment After Statute of Limitations Has Run
(“Relation Back”) - To Join a Claim Not Originally Asserted
An amended pleading “relates back” if the pleading concerns the
same conduct, transaction, or occurrence as the original pleading
152
Relation back means you treat the amended pleading as though it was filed when ___
the original was filed, so it can avoid a statute of limitations problem.
153
Amendment After Statute of Limitations Has Run
(“Relation Back”) - To Change a Defendant. The amendment will relate back if:
(1) The amendment concerns the same conduct, transaction, or occurrence as the original;
(2) The defendant had such knowledge of the case such that she will
be able to avoid prejudice; and
(3) he defendant knew or should have known that, but for a mistake, she would have been named originally
- 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).
154
Supplemental pleadings set forth things that happened ___
after the pleadings were filed.
155
To file supplemental pleading you must make a motion; whether that motion is granted is ___
within the discretion of the trial court.
156
Rule 11 applies to ___
all papers except discovery (which are treated by a different, similar rule)
157
When the lawyer or pro se party signs
documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry (per Rule 11):
- The paper is not for an improper purpose;
- The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
- The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.
- In addition, 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). It is a “continuing certification.”
158
The purpose of Rule 11 sactions is to
deter a repeat of the conduct (not punish)
159
If there is a violation of Rule 11, such as an assertion of a baseless claim, sanctions may be imposed against ___
the party, the lawyer, and/or the lawyer’s firm.
160
The court can also raise Rule 11 violations ___.
“sua sponte” (on its own motion).
161
The court raises Rule 11 sanction does this by issuing an order to show cause why sanctions should not be imposed. But before imposing a sanction regardless of who filed the motion, the court must ___
give the
sanctioned party an opportunity to be heard.
162
Rule 11 sanctions are generally paid to ___
The court, not the other party
163
Joinder rules define the scope of the case—____
how many parties and claims can be joined in one case?
164
If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on other parties but does not file it with the court yet. The party in
violation has a safe harbor of ___
21 days in which to fix the problem and
avoid sanctions.
-> If she does not do so, then the motion can be filed
with the court.
165
CLAIM JOINDER BY PLAINTIFF
The plaintiff (in fact, anyone asserting a claim) may join any additional claim she has against that adverse party—even if the additional claim is unrelated to the original claim.
-> But there still needs to be SMJ!
166
The claims by multiple plaintiffs or against multiple defendants must:
(1) arise from the same transaction or occurrence (“T/O”); and
(2) raise at least one common question of law or fact.
167
Three questions when joining an absentee:
- Is the absentee necessary (or “required”)?;
- f the absentee is necessary, can the absentee be joined?; and
- If the absentee can’t be joined, can the case proceed anyway?
168
An absentee is necessary when:
- Without the absentee, the court cannot accord complete relief
among the existing parties (worried about multiple suits); or
- The absentee’s interest may be harmed if she is not joined; or
- The absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations.
169
Joint tortfeasors are ____
never necessary.
170
If an absentee is labeled as necessary, a court will see if joinder of the absentee is “feasible.” Joinder is feasible if:
- There is PJ over the absentee; and
- There will be federal SMJ over the claim by or against the absentee.
--> In determining whether the claim invokes diversity, the court “aligns” the absentee as a plaintiff or defendant based on the
absentee’s interest.
171
After the defendant serves a counterclaim
against the plaintiff, the plaintiff must respond under Rule 12 within ____
21 days of service of the counterclaim.
171
If the (necessary) absentee is served _____ there is PJ over the absentee regardless of contacts with the forum.
within a district of the United States and not more than 100 miles from where the summons was issued,
172
What happens if a necessary absentee cannot be joined (for example, there is no PJ over the absentee)? The court then must determine whether to proceed without the absentee or dismiss the entire case. Factors:
- Is there an alternative forum available? (maybe some state court);
- What is the actual likelihood of harm to the absentee?; and
- Can the court shape relief to avoid that harm to the absentee?
173
If the court decides to dismiss rather than proceed without the absentee, the absentee is called ____
“indispensable.”
174
There are two types of counterclaims: ____
compulsory and permissive.
175
An order that maintains the status quo until trial is a ___. Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek a ___
preliminary injunction; TRO
176
A compulsory counterclaim is one that ___
arises from the same T/O as the plaintiff’s claim.
177
Unless the counterclaimant has already filed the
claim in another case, she must ____
file the compulsory counterclaim in the pending case or the claim is waived. (only if there was an opportunity to dismiss = not barred if dismissed on 12 motion for example)
178
A permissive counterclaim is one that ____
does not arise from the same T/O as the plaintiff’s claim
179
There must be ____ over any counterclaim.
subject matter jurisdiction
180
An impleader claim (also called a third-party claim) is one where ____
a defending party (usually the defendant) is bringing in a new party.
181
An impleader claim is used to ____
shift to the TPD the liability that the defendant will owe to the plaintiff.
182
For impleader claims ___ shifts liability completely (so the TPD must cover the full claim). ___ shifts it pro-rata (so the TPD must cover a pro-rata portion of the claim).
Indemnity; Contribution
183
An impleader claim is ____
permissive, meaning that the defendant need not bring it in the current case.
184
The only compulsory claim is the ___
compulsory counterclaim.
185
To implead a third party, the defendant must ____
(1) file a third-party complaint naming the TPD and (2) have that complaint formally served (that is, served like an original complaint) on the TPD.
186
There is a right to implead within ____. After that, court permission is needed.
14 days of serving the answer
187
After the TPD is joined, the plaintiff may assert claim(s) against the TPD, and the TPD may assert claim(s) against the plaintiff, that ____
arise out of the same T/O as the underlying case.
188
For the putspoes of the limitation on use of supplemental jurisdiction in diversity cases: a TPD is ___
not a plaintiff.
189
Like an absent party, there is PJ over an impleaded party if he is served ____
in a district in the United States and not more than 100 miles from the federal court that issued the summons regardless of his contacts with the forum. If more than 100 miles, there must be traditional contacts-based PJ.
190
A nonparty absentee uses ____ to bring herself into the case.
intervention
191
The intervenor chooses to come in either as a plaintiff to assert a claim or as a defendant to defend a claim. The court may ___
realign the intervening party if it thinks the absentee came in on the “wrong” side.
192
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.”
193
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. Permissive intervention is usually
allowed unless it would cause delay or prejudice to someone.
194
A claim by an intervenor plaintiff in a diversity case is a claim by a plaintiff, so ____
the limitation on supplemental jurisdiction may apply.
195
____ applies if separate actions might result in double
liability against a stakeholder.
Interpleader
196
An interpleader suit ____
permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim
to it.
197
Rule 22 interpleader requires ____
(1) complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue, or (2) a federal question claim. Normal service and venue rules apply.
198
Statutory interpleader requires ___
only diversity between any two contending claimants and $500 be in issue. Service may be nationwide and venue is proper where any claimant resides.
199
If the stakeholder makes no claim to the stake (that is, the stakeholder is disinterested), and the claimants are all from the same state, statutory interpleader would ___
not be available even if the stakeholder and claimants are from different states. But if the stakeholder is interested in the stake, statutory interpleader potentially would be available; in such a case, the stakeholder is considered to be a claimant.
200
To qualify for a class action, all four of the following must be demonstrated.
(CANT) Commonality, adequate representation, numerosity, typicality
201
Numerosity means that ____
there are too many class members for practicable joinder. There is no magic number.
202
Commonality
There must be some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.
203
Typicality
The class rep’s claims are typical of the claims of the class.
204
The class rep needs to ___
fairly and adequately represent the class.
205
After satisfying these four requirements, the action still must fall into one of three types of class actions.
Type 1 (“Prejudice”)
Type 2 (“Injunctive or Declaratory Relief”)
Type 3 (“Common Question” or “Damages”)
206
For Type 1 class actions, class treatment is necessary to ___
avoid harm (prejudice) either to class members or to the non-class party. These types of class actions are rare.
207
A Type 2 class action seeks ____
an injunction or a declaratory judgment because the defendant treated the class members alike. Plaintiffs in a Type 2 class action generally cannot seek damages.
208
For a Type 3 class action, ___
(1) common questions must predominate over individual questions; and (2) the class action is a superior method to handle the dispute.
209
A case is not a class action until ___
the court grants the motion to certify it as a class action.
210
When certifying a class action:
(1) Define the class and the class claims, issues, or defenses; and
(2) Appoint class counsel, who must fairly and adequately represent the interests of the class.
211
When the court rules on a class certification motion, the losing party can seek review from the court of appeals. It’s ___
discretionary with the court of appeals.
212
In a ___ class action, the court must notify class members that they are in a class.
Type 3
213
Class action Type 3 notice means individual notice (usually by mail) to ___
all reasonably identifiable members.
214
Type 3 class action notice paid for ___ tells the class members various things, including that they: __
by the rep
- Can opt out;
- Will be bound by the judgment if they don’t opt out; and
- Can enter a separate appearance through counsel.
215
There is no right to opt out of a ____ class action.
Type 1 or Type 2
216
The parties can settle or dismiss a certified class action only ___. And, in all three types, the court must ___.
with court approval; give notice to the class members to get their feedback on whether the case should be settled or dismissed
217
If it’s a Type 3 class, the court also might refuse to approve the settlement unless ____
members are given a second chance to opt out.
218
For diversity class action cases, only the citizenship of the ___ is considered, and her claim must exceed $75,000.
class rep
219
Class Action Fairness Act (“CAFA”)grants SMJ separate from diversity of citizenship jurisdiction. It
lets a federal court hear a class action if:
- There are at least 100 members;
- Any class member, not just the representative, is of diverse citizenship from any defendant; and
- The aggregated claims of the class exceed $5 million.
- Also, any one defendant, even an in-state defendant, may remove the case from state to federal court.
220
Under CAFA where most class members and the primary defendants are citizens of the same state)
There are complicated provisions to ensure that local classes do not stay in federal court; these cases get dismissed (or, if they were removed from state court, remanded to state court).
221
___ is the phase of litigation in which the parties find out what the other parties and witnesses know.
Discovery
222
____ are information that each party must give to other parties—even though the parties have not asked for it.
Initial required disclosures
223
Unless a court order or stipulation of parties says otherwise, within ___ of the Rule 26(f) conference, each party must disclose certain information.
14 days
224
Initial Requires disclosure include
- Identities of Persons with Discoverable Information that the Party May Use to Support Her Claims or Defenses
- Documents and Things that the Party May Use to
Support Her Claims or Defenses
- Computation of Relief and Along with Supporting Documents/ESI
- Insurance Coverage
225
The names, telephone numbers, and addresses of persons with discoverable information, and the topics on which they have discoverable information, who the party may use___, must be disclosed as an initial disclosure.
to support her claims or defenses
226
____ that the party may use to support her claims or defenses must be disclosed as an initial disclosure. ___ may be produced instead of the document itself.
Documents and tangible things; Copies or a description of the documents
227
Documents and tangible things that are ____ need not be disclosed.
not in the party’s control
228
Anyone claiming monetary relief must provide a ___ supported by documents or ESI of the amount sought as an initial disclosure.
“computation,”
229
The parties must disclose any insurance that might cover ___ even though the existence of the insurance probably would not be admissible at trial.
all or part of the judgment in the case
230
If a party fails to initially disclose material that was required to be disclosed, that party ___
cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless.
231
REQUIRED DISCLOSURES ABOUT AN EXPERT
WITNESS
Later in the case, at a time directed by the court, each party must identify expert witnesses (”EWs”) who may provide testimony at trial (that is, opinion testimony) and provide certain other disclosures noted below.
232
Facts known and opinions held by consulting experts are generally ___
not discoverable absent “exceptional circumstances.”
233
As to an expert witness “who may be used at trial,” each party generally must disclose to the other parties the identity of and written report prepared by the EW. The written report must include:
- Opinions that the EW will express;
- The bases for the opinions;
- The facts used to form the opinions;
- The EW’s qualifications; and
- How much the EW is being paid.
- NOTE: Earlier drafts of the EW report and communications between the lawyer and the EW are work product.
234
After the disclosure above, a party may ___
take the deposition of the EW. Best practice is for that party to subpoena the EW to compel her attendance. (Without the subpoena, the expert may not show up even if the
parties agreed to the deposition.) The deposing party ordinarily will bear the cost of the EW’s deposition.
235
REQUIRED PRETRIAL DISCLOSURES
No later than 30 days before trial, the parties must give detailed information about their trial evidence, including identity of witnesses who will testify live or by deposition and documents, ESI, and other things that they intend to introduce at trial.
236
Once the initial disclosures have been made, parties may request information from one another. However, assuming that no court order or stipulation provides otherwise, a party cannot send discovery requests to another party until ___
after the Rule 26(f) conference.
237
Exception to the rule that you have to wait until after the Rule 26(f) conference to send discovery requests
requests to produce can be served earlier (once 21 days
has passed since service of process). Such a request is treated as though it was served at the Rule 26(f) conference. Generally, the cost of responding to discovery is borne by the responding party.
238
In a deposition, a person gives live testimony in response to
questions by counsel or pro se parties. The questions are usually oral, but can be written (if written, they are read by the court reporter). The deponent ___
testifies under oath, and the deposition is recorded by sound or video or stenographically so that a transcript can be made.
239
___ may be deposed.
Both parties and nonparties
240
The deponent ___ to review her records prior to the deposition; testimony is from present recollection.
isn’t required
241
A party ___ to be served with a subpoena to appear at a deposition.
does not need (A notice of deposition is sufficient to compel her appearance.)
242
A ___ must be served with a subpoena or else she is not compelled to attend a deposition.
nonparty
243
A ____ requires the deponent to bring requested materials with her to the deposition.
subpoena duces tecum
244
Unless a nonparty agrees otherwise, the farthest she can be required to travel is ___
100 miles from where the nonparty resides or is employed.
245
When the party is suing an organization, she may “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
246
A party cannot take more than ___ without court approval or stipulation.
10 depositions or depose the same person twice
247
Depositions cannot exceed ___ unless the court orders or parties stipulate otherwise.
one day of seven hours
248
Subject to the rules of evidence, depositions may be used at trial:
- To impeach the deponent;
- For any purpose if the deponent is an adverse party; or
- For any purpose if the deponent (regardless of whether a party) is unavailable for trial (for example, illness, out of the country, etc.), unless that absence was procured by the party seeking to introduce the evidence
249
___ are written questions to be answered in writing under oath.
Interrogatories
250
Interrogatories are sent ___
only to parties, never to nonparties
251
The maximum number of interrogatories, absent a court order or stipulation, is ____
25, including subparts
252
Interrogatories are to be answered within ____
30 days from their service.
253
A party must answer interrogatories based upon ___
information reasonably available.
254
If the answers to interrogatories can be found in business records and the burden of finding the answer would be about the same for either party, ____
the responding party can allow the requesting party to have access to the records.
255
Contention interrogatories, that is, interrogatories that inquire
about legal contentions, are ___
permitted.
256
___ 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.
A request to produce
257
ESI must be produced in the form that the requesting party specifies, but ___
the responding party may object
258
The disclosing party must respond to the request to produce ___, stating that the material will be produced or asserting objections.
in writing within 30 days of service
259
Only ___ can be sent a request to produce, but a nonparty can be served with a ___ to require her to disclose the same types of information.
parties; subpoena
260
___ is required to compel a party (or person in the party’s
custody and control) to submit to a medical exam
A court order
261
The requesting party of a medical exam must show: ___
(1) that the person’s health is in actual controversy gmand (2) good cause.
262
The ___ party chooses the licensed medical professional to perform the exam.
requesting
263
Once the court orders a medical exam and the medical professional conducts the exam, the medical professional will write a report and give it to the requesting party. The person undergoing the exam can get a copy of the report. If the person requests and obtains the report, she must ___
(on request) produce all medical reports by her own doctors about that same medical condition. She also waives
any doctor-patient privilege that she may have had with her doctor regarding that condition.
264
____ is a written request that someone admit certain matters.
A request for admission
265
The responding party to a request for admission must respond ___, either denying specifically or objecting. But if the responding party states ____, she can state that she doesn’t know the answer.
in writing within 30 days of service; that she has made a reasonable inquiry and cannot find enough information from which to admit or deny
266
In response to a request for admission if the party fails to deny a proper request, the matter is ___
deemed admitted.
267
Rule 11 ___ apply to discovery documents. However, by another rule, every discovery request and response is signed by counsel certifying it is: ___
does not;
- Warranted;
- Not interposed for an improper purpose; and
- Not unduly burdensome.
268
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.
269
A party can discover anything that is ___
relevant to a claim or defense and proportional to the needs of the case.
270
Unlike initial disclosures, ____ may be discoverable using the regular discovery tools.
something harmful to you
271
Information need not be ___ to be discoverable.
admissible
272
If documents are not reasonably accessible = if you find good cause for discovery court can ____
still order production and can allocate the expense between the parties instead
273
A party can object to discovery on the basis of ___
evidentiary privilege
274
Work product or “trial preparation material,” which is material
____, is protected.
prepared in anticipation of litigation
275
Work product ___ generated by a lawyer.
need not be (It can be prepared by the party herself or by any representative of a party)
276
Work product sometimes may be discovered if the requesting
party can show ____
substantial need and undue hardship in obtaining the materials in an alternative way. (This is called “qualified work
product.”)
277
Some work product, however, is absolutely protected and
cannot be discovered. Including:
"Opinion work product” consists of mental
impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered.
278
There is a special rule that the ___ is discoverable (not work product) even if in report that is protected.
identify of people with discoverable information
279
Notwithstanding work product, a party has a right to demand
discovery of ___.
any previous statement that she has made regarding the case.
280
If a party withholds discovery or seeks a protective order based on privilege or work product, she must ____
claim the protection expressly and describe the materials in detail. She does this in a document, called a privilege log, that lists the materials protected by date, author, recipient, and privilege or protection claimed
281
The privilege log must be in enough detail that __
it allows the judge to determine whether the material is
protected
282
If a party inadvertently produces privileged or protected material, she should ___. The other party then must
____
notify the other party promptly; return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.
283
There are three ways courts get involved in discovery disputes:
1. Protective Order
2. Party Responds, But Not Fully
3. No Response to Discovery Request
284
If the responding party thinks a discovery request subjects her to ___, she can move for a protective order. The party must certify that ____.
annoyance, embarrassment, undue burden or expense; she tried in good faith to resolve the issue without court involvement; that is, she asked the other side to “meet and confer.”
285
If a party responds to a request but fails to answer all questions because she objects to them (or some of them), she may be ___
compelled to comply by court order
286
A TRO may be issued “ex parte,” which means that a court has done something without giving notice
to the other party. The court will issue a TRO ex parte only if:
- The applicant files a paper under oath clearly showing that if the TRO is not issued, she will “suffer immediate and irreparable harm” if she must wait until the other side is heard.
- The applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer (or why such notice should not be required in this case).
287
If a responding party fails completely to attend her deposition, respond to interrogatories, or respond to requests for production, she will be subject to ___
various sanctions plus costs
288
The party seeking sanctions generally must certify that she ___
tried in good faith to get the information without court involvement; that is, to try to “meet and confer.”
289
When a producing party responds, but not fully sanctions are a two-step process.
1- The requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the unproduced material, etc., plus costs (including attorneys’ fees) of bringing the motion.
2 - If the producing party violates the order compelling her to
answer, the court can enter “merits” sanctions, along with costs and attorneys’ fees for bringing the motion.
+ The producing party could be held in contempt for violating a court order (except there is no contempt for refusal to submit to a medical exam).
290
If the producing party fails to respond at all (see 10.7.3., above), the court can enter “merits” sanctions plus costs (and attorneys’ fees for the motion). There is no need to ____
get an order compelling answers; you go directly to “merits” sanctions.
291
A judge is free to choose among the following as “merits” sanctions when they may be applied for not following discovery procedures:
E- stablishment order (establishes facts as true)
- Strike pleadings of the disobedient party (as to issues re the discovery)
- Disallow evidence from the disobedient party (as to issues re the discovery)
- Dismiss plaintiff’s case (if bad faith shown)
- Enter default judgment against defendant (if bad faith shown)
292
When litigation is reasonably anticipated, parties must ___
preserve discoverable information.
293
If ESI is truly lost (cannot be recovered or restored at any cost) and it was lost because the party in control of it failed to take reasonable steps to preserve it. The court may “order measures” to cure the harm caused to the other party.
- Can the court enter an “adverse inference” order; that is, tell the jury that it must presume that the lost information would be unfavorable to the party that lost the ESI?
Can it enter “merits” sanctions?
Only if the party who lost the ESI acted with intent to deprive the other party of the ESI.
- The court also may enter a default against the defendant when her conduct was in bad faith.
294
If the court issues the TRO, the applicant must ___
post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.
295
If the court issues a TRO, the order must be
served on the defendant as soon as possible. Generally speaking, a party without notice of a TRO ___
cannot be punished for violating it.
296
A ruling granting or denying a TRO ordinarily may ___
not immediately be appealed.
297
A TRO must state its terms specifically, describe in detail what ___
the defendant must do (or refrain from doing), state why it was issued, and state why the threatened injury to the plaintiff was irreparable.
298
A TRO is effective for no more that __ (or lesser time stated by the court), but the restrained party may move to dissolve or modify it earlier. If the applicant shows good cause before expiration, it can be extended for up to another ___.
14 days; 14 days
299
A TRO cannot extend beyond ___. If the court extends a TRO beyond that time, it may be treated as a ___
28 days; preliminary injunction.
300
A preliminary injunction ___ be issued ex parte.
cannot
301
For a preliminary injunction the burden is on the applicant to show:
- She is likely to suffer irreparable harm if the injunction is not issued;
- She is likely to win on the merits of the underlying case;
- The balance of hardship favors her (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
- The injunction is in the public interest.
302
There is ___to an injunction.
no right (The matter is in the court’s discretion.)
303
As with a TRO, if the court grants the preliminary injunction:
- the applicant must post a bond.
- 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.
304
An order granting or denying a preliminary injunction may be appealed ___.
as of right.
305
How a case can go away without going to trial:
1. Voluntary dismissal
2. Default and Default Judgment
3. Motion to dismiss for failure to state a claim (12b)
4. Motion for summary judgment (56)
306
If the plaintiff wants to withdraw the case, she may do so without a court order ___. The parties may also ___ to a voluntary dismissal without court order.
before the defendant serves an answer or motion for summary judgment; stipulate
307
After an answer/motion has been served court permission is __ absent a stipulation to dismiss the case
required (the court has discretion to grant).
308
The first voluntary dismissal is ___. The second voluntary dismissal is ___
“without prejudice.”; “with prejudice,” which operates as an adjudication on the merits and takes away the plaintiff’s ability to refile the case.
309
____ might occur when the defendant does not respond to the complaint in time (21 days after being served with process).
A default and default judgment
310
Entry of Default
A default is a notation by the court clerk on the docket sheet in the case. A default does not happen automatically. Rather, the plaintiff must move for entry of default. The plaintiff must demonstrate that the defendant failed to respond in time.
311
___, the defendant can respond by motion or answer even beyond 21 days.
Until a default is actually entered
312
The entry of default cuts off the defendant’s right to respond. Entry of default, however, does not ____
automatically entitle the plaintiff to relief.
313
The clerk of the court can enter a default judgment if:
- The defendant has made no response at all (that is, she has not “appeared”);
- The claim itself is for a sum certain in money;
- The plaintiff gives an affidavit (sworn statement) of the sum owed; and
- The defendant is not a minor or incompetent.
-> If any of these is not true, the plaintiff must apply to the court for the default judgment.
314
The judge will hold a hearing and has discretion whether to enter the judgment. The defendant is entitled to notice of the hearing if she has appeared in some fashion in the case. case. Unlike at trial, the plaintiff’s recovery in a hearing for a default judgment is limited to ___
what is pleaded in the complaint.
315
The defendant may move to have the court set aside a default or default judgment by showing ___
(1) good cause (like excusable neglect) and (2) a viable defense.
316
A motion to dismiss for failure to state a claim tests whether the case belongs in the litigation stream at all. If the ____, the case can be dismissed.
plaintiff’s complaint fails to state a claim
317
The same motion (for failure to state a claim) if made after the defendant has answered, has a different name: ___
a motion for judgment on the pleadings.
318
What the Judge Considers in Ruling on a failure to state claim/judgment on the pleadings Motion
In ruling on this motion, the court ignores the plaintiff’s legal conclusions. It looks only at the plaintiff’s allegations of fact on the face of the complaint (and not any evidence) and asks “if these facts are true, do they state a plausible claim?”
-> the judge uses her experience and common sense to see if the facts state a plausible claim.
319
The court might allow the plaintiff to ___ to try to state (plead) a claim.
amend the complaint
320
____ is used after the case has been filed
and the plaintiff has survived any Rule 12 motions. So we’re in the litigation stream. But a trial might not always be needed.
A motion for summary judgment
321
Summary judgment weeds out cases in which no trial is necessary. The only reason to have a trial is to ___
resolve a dispute of material fact.
322
The party moving for summary judgment must show that:
- There is no genuine dispute on a material fact; and
- She is entitled to judgment as a matter of law.
NOTE: Even If the standard is met, the court is not always required to grant the motion.
- There may be some discretion to deny the motion (measured by an “abuse of discretion” standard on appeal).
323
Any party can move for summary judgment no later than ___
30 days after close of discovery
324
The motion for summary judgment can be for ___
“partial” judgment (sometimes called summary adjudication)
325
In a summary judgment motion, the court can look at evidence. The court views that evidence in the light ___
most favorable to the nonmoving party.
326
The evidence considered at summary judgment usually are
(1) affidavits, (2) declarations, (3) deposition testimony, or (4) interrogatory answers. (not the complaint! = unless it is a "verified pleading," which is rare)
-> Why can these things be considered “evidence” = Because they are under oath.
327
If the party opposing summary judgment needs more time to find evidence to oppose the motion, she may file an ____
affidavit or declaration with the court stating what that evidence would be. The court may allow more time for the party to obtain evidence.
328
The judge ___ credibility on a summary judgment motion.
does not assess
329
Suppose an authenticated videotape of the accident scene discredits Plaintiff’s witness’s version of the facts. The court can ____
ignore Plaintiff’s evidence and grant summary judgment.
330
Unless the court order says otherwise, at least ___ before the
court’s scheduling order, the parties “meet and confer” to discuss
production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information. They must
present to the court a detailed discovery plan no later ___ the Rule 26(f) conference.
21 days; than 14 days
after
331
Contents of Discovery Plan
The plan must include views and proposals on timing, issues about
discovery of ESI, including how it will be produced and any problems
retrieving it (for example, deleted files), etc.
332
Scheduling Order
Unless local rule or court order says otherwise, the court enters an
order setting cut-offs for joinder, amendment, motions, completion of
discovery, etc. This is a roadmap for how the litigation proceeds up to
trial.
333
The court may hold ___ to oversee the case.
“pretrial conferences”
334
The ____ determines the issues to be tried and
evidence to be proffered at trial. This is recorded in the pretrial
conference order, which supersedes the pleadings. This order is
a roadmap of issues to be tried, evidence to be presented at trial,
witnesses, etc.,
final pretrial conference
335
If we have a jury, it determines the ____
If we don’t have a jury, the judge determines the facts
facts and returns the “verdict.”
336
The judge also might hear a ___ which is a pretrial motion outside of the presence of the jury to decide whether
the jury should hear certain evidence.
“motion in limine,”
337
The Seventh Amendment preserves the right to jury in ____. The Seventh Amendment doesn’t
apply in state court, only federal civil cases.
“civil actions at law,” but not in suits at equity
338
What if a case includes both law and equity?
Facts underlying a damages claim will be tried to the jury. Facts relating wholly to an equity claim are tried to the judge. Generally, the jury issues will be tried first.
339
What if a fact (for example, whether the defendant trespassed
on the plaintiff’s property) underlies both a claim for damages and a
claim for an injunction?
The jury will decide that fact.
340
A party must demand the jury in writing no later than ____. If a
party fails to do so, she waives the right to a jury.
14 days after service of the last pleading addressing a jury triable issue (The last pleading addressing a jury issue is usually the answer)
341
In the jury selection process (“voir dire”), each side might ask the
court to strike (remove) potential jurors. There are two kinds of
challenges to jurors.
1 - For Cause Challenges
2 - Peremptory Challenges
342
A juror may be challenged “for cause,” for example, because the
potential juror will not be impartial. Parties have ___
of challenges for cause.
an unlimited number
343
Peremptory Challenges
There are challenges for which the party states no reason.
344
Generally, each side is limited to ___ peremptory challenges.
three
345
Importantly, peremptory challenges may be used only in ___ because jury selection is a state action even
in a civil action between private parties.
a race- and gender-neutral manner
346
Number of Jurors in Federal Court
A minimum of
six jurors, and a maximum of 12, unless the parties agree otherwise.
347
All jurors participate in the verdict unless a juror is ___, and the verdict must be unanimous unless
the parties agree otherwise.
excused for good cause
348
Parties submit proposed jury instructions to the judge. They do this at ___
the close of all evidence (or earlier if the court says so).
349
The judge may hold an ____ conference with the parties to
discuss proposed jury instructions.
“off the record”
350
Before final argument and instruction, and on the record, the court informs the parties of ___.
(1) what instructions it will give and (2) what proposed jury instructions it rejected.
351
The parties must be allowed to object on the record and out of the jury’s
hearing to the chosen jury instruction. This is true even if the party objected during the “off the record”
conference. If objections are not made before the jury is “charged”
(given the instructions), ___
the objection is waived. A court can revisit that jury instruction only for clear error that affected a party’s rights
352
Forms of Verdicts (The judge determines what verdict form the jury will use)
- General Verdict
- Special Verdict
- General Verdict with written questions
353
General Verdict
just says who wins and, if plaintiff wins, what the
relief is.
354
Special Verdict
the jury answers, in writing, specific written questions about the facts in dispute, but it does not say who wins or loses.
355
General Verdict with Written Questions
the jury not only gives a general verdict, but it also answers specific questions submitted to it.
The questions ensure that the jury focused on the important issues.
356
If the jury returns a general verdict, the clerk of the court will ___
enter the judgment.
357
If the jury returns a special verdict (or general verdict with written questions), and the answers are consistent with each other and with the verdict, the judge ____
approves the judgment and the
clerk enters it.
358
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.)
359
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.)
360
In general, a verdict may be “impeached” based upon ___
“external” matters (i.e., bribers). But a verdict will not be set aside if the misconduct was harmless—for example, a juror chatted for a moment with a party about the weather (not the case).
361
When there is no jury (either Seventh Amendment did not apply or the parties waived the right to jury trial), the judge determines the facts at trial. The judge must ____
record her “findings of fact” orally on
the record or in writing, along with her conclusions of law (which are stated separately from her findings of fact).
A judgment also must be entered. The judgment is very short—just telling who wins and, if plaintiff won, the relief granted.
362
Motion for Judgment as a Matter of Law (“JMOL”)
If the judge grants JMOL, the case will not go to the jury—the judge grants the motion and enters judgment. The motion is based upon evidence presented at trial.
363
Standard for Granting JMOL
The standard for granting the motion is that reasonable people could not disagree on the result. It’s like summary judgment (where there
was no dispute of material fact), except that this comes up at trial instead of before trial.
-> Like summary judgment, the court views the evidence in the light most favorable to the non-moving party
364
Timing of JMOL
A party can move for a JMOL any time before the case is submitted to the jury, but a court may not grant the motion until the party opposing the motion has been heard at trial on the issue.
365
Renewed Motion for Judgment as a Matter of Law (“RJMOL”)
is the same as a JMOL, but it comes up after trial. If an RJMOL is granted, the court enters judgment for the party that lost the jury verdict.
- As with a JMOL, the court views the evidence in the light most favorable to the non-moving party.
366
Timing of RJMOL
must be made within 28 days after entry of judgment.
367
Absolute prerequisite to bringing RJMOL
The party must have moved for JMOL at the proper time at trial. Failure to do
so waives RJMOL.
-> Not only that, the RJMOL motion must be based upon the same grounds as the JMOL motion
368
Motion for New Trial
Assume that judgment is entered, but some error at trial requires that we should start over and have a new trial. A new trial can be granted
on any (non-harmless) error that makes the judge think there should be a do-over.
369
A party must move for a new trial within ___ of the judgment.
28 days
370
Some reasons a motion for a new trial may be granted are:
- The judge gave an erroneous jury instruction;
- New evidence was discovered that could not have been discovered before with due diligence;
- Misconduct was committed by a juror, party, or lawyer, etc.;
- The judgment is against weight of the evidence (serious error of judgment); and
- Damages are inadequate or excessive.
371
It’s possible that a party met the standard for RJMOL but waived it by not moving for JMOL at trial. BUT That party could ___
move for new trial on the grounds that the verdict is against the weight of the evidence.
372
Ordering a new trial is less drastic than ordering RJMOL. Why?
A new trial results in starting over, so the same party may still win. An RJMOL results in taking judgment away from one party and giving it
to the other.
373
To avoid a new trial, the court
might suggest ___. If The ground for new trial on this basis is that the jury’s damages figure is excessive or inadequate.
remittitur or additur.
374
The majority standard for excessive/inadequate damages (including the federal) is whether the
damages figure ___
“shocks the conscience"
375
Remittitur
playing hardball with the plaintiff. The court offers the plaintiff a choice: remit part of the damages award or go through a
new trial.
-> But note that the court cannot simply lower the figure that was set by the jury (that would violate the Seventh Amendment).
376
Additur
playing hardball with the defendant. The court offers the defendant a choice: add to the damage award or go through a new
trial.
-> Additur may be allowed in state court but not federal court; it violates the Seventh Amendment.
377
A defendant can submit formal offers to settle the case up to ____
14 days before trial.
378
Rejecting an offer of judgment
Cost-shifting provisions that apply when a plaintiff rejects an offer to settle and doesn’t
do as well at trial as the offer.
379
After a judgment is entered, it is possible to obtain relief from it under
certain circumstances.
- Clerical error
- Mistake, excusable neglect (including viable defense)
- Fraud, misrepresentation, or misconduct by opposing party
- Newly discovered evidence that could not have been discovered with due diligence for a
new trial motion. The newly discovered facts must have existed at the time of trial
- Judgment is void (for example, the court had no SMJ)
380
Timing for motion from relief for clerical error
any time
381
Timing for motion from relief for mistake, excusable neglect (including viable defense)
Reasonable time (never more
than one year)
382
Timing for motion from relief for fraud, misrepresentation, or misconduct by opposing party
Reasonable time (never more
than one year)
383
Timing for motion from relief for Newly discovered evidence that could not have been discovered with due diligence for a new trial motion. The newly discovered facts must have existed at the time of trial
Reasonable time (never more
than one year)
384
Timing for motion from relief for Judgment is void (for example, the court had no SMJ)
Reasonable time (no maximum)
385
The losing party has a right to appeal if the court’s order is a __.
final judgment (determines the merits of the
entire case = Does the trial court have anything left to do on the merits of the case?)
386
The notice of appeal must be filed with ___ within ____ that is being appealed.
the district court; 30 days after entry of the judgment
387
If the district court’s order is not a final judgment, it might be appealed using one of several doctrines.
1. Interlocutory Appeals of Injunctions as of Right
2. Interlocutory Appeals Act
3. “Collateral Order” Doctrine
4. Multiple Claims and Parties
5. Class Action
6. Extraordinary Writ (Mandamus or Prohibition)
388
Interlocutory Appeals of Injunctions as of Right
Orders granting, modifying, or refusing preliminary or permanent injunctions are reviewable as of right despite the fact that the order may not be final. However, this type of review does not include TROs (but recall TRO becomes preliminary injunction after 28 days = then reviewable).
389
The Interlocutory Appeals Act allows appeal of a nonfinal order if:
- The district judge certifies that it involves a controlling issue of law;
- As to which there is substantial ground for difference of opinion; and
- The court of appeals agrees to hear it.
390
“Collateral Order” Doctrine
The appellate court has discretion to hear an appeal on an issue if that issue:
- Is distinct from the merits of the case;
- Involves an important legal question; and
- Is essentially unreviewable if parties await a final judgment.
391
When more than one claim is presented in a case, or when there are multiple parties, the district court may expressly direct entry of a final judgment as to one or more of them if ____
it makes an express finding that there is no just reason for delay
392
A court of appeals has ___ to review an order granting or denying certification of a class action. The party seeking review must
do so at the court of appeals within ___. An appeal does not stay the proceedings at district court unless the court of appeals or district court says so.
discretion; 14 days of order.
393
___is an original proceeding in the court of appeals to compel the district judge to make or vacate a particular order. The writ is not a substitute for appeal. It is available only if ____
An extraordinary writ of mandamus or prohibition; the district court is violating a clear legal duty.
394
When the district judge decides questions of law, the court of appeals uses a ____
de novo standard; that is, no deference is given to the district judge when reviewing that decision.
395
In a non-jury trial, when the district judge determines questions of fact, the court of appeals will affirm unless the findings are ____
clearly erroneous.
396
In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless ___
reasonable people could not have made that finding.
397
On discretionary matters (for example, whether to grant a motion to amend pleadings, to allow permissive intervention) that the judge
decides, the court of appeals will affirm unless ____
the district court judge abused her discretion.
398
Content of jury instructions is reviewed ___; but the decision to give a particular instruction is review ___
de novo (question of law); abuse of discretion (discretionary matter)
399
Not every error (even an error of law) requires reversal on appeal. No reversal is required if ____
the error is harmless; that is, it did not affect the
outcome of the case.
400
If Case 1 and Case 2 are in different judicial systems (for example, state and federal courts or courts in different U.S. states), the court in
Case 2 applies the preclusion law of ___
the judicial system that decided Case 1.
401
Requirements for Claim Preclusion
For a claim to be precluded (or barred), three things must be true:
1. Same Claimant Suing the Same Defendant (not just the same parties)
2. Valid, Final Judgment on the Merits (Unless the court said the judgment was “without prejudice” when entered, any judgment is “on the merits” unless it was based on a lack of jurisdiction (both personal and subject matter), improper venue, or a failure to join an indispensable party.
3. Case 1 and Case 2 Must Be the “Same Claim”
- The majority view (including federal law) is that a claim is any right to relief arising from a transaction or occurrence.
- But there is one minority view,
the so-called “primary rights doctrine.” -> Under this view, there are separate claims for property damage and for personal injuries that arise in a single event.
402
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
- That is, it is basis for the judgment.
4. Against Whom Is Preclusion Used? (Due Process Factor)
- Issue preclusion can be used only against somebody who was a party to Case 1 or in “privity” with a party.
5. By Whom Is Preclusion Used? (Mutuality Rules)
- Nonmutual Defensive Issue Preclusion = generally allowed
- Nonmutual Offensive Issue Preclusion = most states say no, but some consider facotrs in order to apply
403
Nonmutual Offensive Issue Preclusion application facotrs (for states that allow it)
- The party to be bound had a full and fair opportunity to litigate in Case 1;
- The party to be bound had a strong incentive to litigate Case 1.
- The party asserting issue preclusion could have easily joined to Case 1.
- There have been no inconsistent findings on the issue.
404
Preclusion: Merger vs. Bar
Merger = when the party one, can't being another claim
Bar = party lost, can't bring another claim
405
What preclusion law applies
Federal common law applies to preclusion, but federal law says that in diversity you apply state law of the state in which the court sits
