Civ Pro Flashcards

Question

Effect of D refusing to return waiver form [notice/service of process - waiver]

Answer 1

If D fails to return the waiver form and P then has D served personally or by substituted service, if D did not have good cause for failing to return the waiver form, there is a penalty for D – must pay the cost of service

Answer 2

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). If the process server fails to report, that does not affect the validity of service.

Answer 3

Process may be served within the state in which the federal court sits. It may be served outside that state if state law allows. That is why the assessment of whether we have PJ is the same for federal court as it is for state court.

Answer 4

If D is present in the state to appear as a party, witness, or attorney in a different civil case, D may not be served with process because he is immune.

Answer 5

Other documents (e.g., answer, other pleadings, motions, discovery) get 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 pro se party). These documents can be served via email if the other party agrees. Service is deemed complete when the documents are mailed (a mailbox rule). The other party has 30 days in which to respond to the request. If the requests were mailed, the party gets an extra three days.

Answer 6

SMJ is about the court’s power over the case (not over the parties). Federal courts can only hear certain kinds of cases. For state courts, the general rule is that they can hear any kind of case – they have “general” SMJ.

Answer 7

Cases under a few federal laws must be brought in federal court—e.g., patent infringement, bankruptcy, some federal securities and antitrust claims. Most cases arising under federal law can be heard by state courts.

Answer 8

iii. Federal courts have “limited” SMJ. There are two main types of cases that can be heard in federal court: 1. Diversity of citizenship a. Note: this includes “alienage” 2. Federal question

Answer 9

Exam tip: Parties CANNOT consent to SMJ

Answer 10

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.

Answer 11

1. No good if any P is a citizen of the same state as any D. (“A match across the v burns diversity”) 2. Exam tip: On the bar exam, they may refer to alienage as “diversity of citizenship.” That is fine, because alienage is a subset of diversity of citizenship jurisdiction. 3. Special rule for alienage: alienage is prohibited if a green car alien is domiciled in the same U.S. state as a litigant on the other side of the case

Answer 12

1. For a human, who is a U.S. citizen, the U.S. state of her citizenship is the U.S. state of her domicile. 2. There is no such thing as a human without a domicile. Everyone has a domicile, and you retain it until you change it. 3. A person cannot have more than one domicile at a time. 4. To establish a new domicile, you need two things (“mind and behind”): - Presence in the new place, and - The intent to make that your home for the foreseeable future. 5. Note: Treat D.C. as a state for these purposes. 6. The test for diversity is when the case is filed.

Answer 13

There are two citizenships for a corporation: 1. Every U.S. state/country where incorporated, and 2. The one U.S. state/country of its PPB - -- - Though a corporation can be incorporated in more than one place, it’s incredibly rare. Usually, there is one place of incorporation. - A corporation can have only one PPB; it is where managers direct, coordinate, and control corporate activities (nerve center). It is usually the site of the corporate headquarters.

Answer 14

Citizenship is the citizenship of all its members

Answer 15

Such persons must sue or be sued through a representative. However, the representative’s citizenship is irrelevant. Use the citizenship of the decedent, minor, or incompetent.

Answer 16

In addition to complete diversity or alienage, P’s claim must exceed $75,000. We look only at the claim itself. Do not include litigation costs or interest on the claim. The claim itself must exceed $75,000. 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.

Answer 17

1. Aggregation means adding two or more claims to meet the amount requirement. We aggregate the claims of any one P against any one D. 2. You can aggregate factually unrelated claims. 3. There is no limit on the number of claims that can be aggregated by one P against one D. 4. For joint claims, the number of parties is irrelevant; you use the total value of the claim (can aggregate the individual injuries when they are joint claims).

Answer 18

P sues D for an injunction to tear down part of his house that blocks P’s view. Two tests: if either is met, most courts say it’s OK: 1. Plaintiff’s viewpoint: Does the blocked view decrease the value of plaintiff’s property by more than $75,000? 2. Defendant’s viewpoint: Would it cost defendant more than $75,000 to comply with the injunction?

Answer 19

Even if the requirements for diversity or alienage are met, federal courts decline to hear some cases. These cases are: divorce, alimony, child custody, and to probate an estate.

Answer 20

The claim in P’s complaint “arises under” federal law (e.g., federal constitution, legislation). - -- 1. Citizenship of the parties is irrelevant 2. The amount in controversy is irrelevant 3. “Well pleaded complaint” rule – it is not enough that some federal issue is raised by the complaint. The P’s claim itself must “arise under” federal law. So we look at the claim and ignore other material P alleged.

Answer 21

Ask: is P enforcing a federal right? 1. If the answer is yes, the case can go to federal court under FQ jurisdiction. 2. If the answer is no, the case cannot go to federal court under FQ.

Answer 22

P has sued D in state court. D would prefer to litigate in federal court. D might be able to “remove” the case to federal court. Removal transfers the case from a state trial court to a federal trial court. If removal was improper, the federal court can “remand” the case back to state court.

Answer 23

D must remove no later than 30 days of 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.

Answer 24

1. All D’s who have been served with process. (So, has to be unanimous) 2. They need not all join in the same document; they can file separate notices of removal—just so all of them remove in a timely fashion. 3. If an additional D is served with process after the complaint is originally filed (and served on the original D), then the 30 day timer starts over

Answer 25

Black letter rule: P’s can never, never, never remove. Even if D files a counterclaim against P, so P is a defendant on the counterclaim, P can never, never, never remove.

Answer 26

- Starting point always: D can remove a case that meets the requirements for diversity of citizenship or FQ. - There are two big exceptions to this, but these exceptions apply only if we are removing on the basis of diversity of citizenship jurisdiction. - So, even though the case meets the requirements for a diversity case, we cannot remove if either of these two exceptions applies: 1. No removal if any D is a citizen of the forum (in-state D rule) AND 2. No removal more than one year after the case was filed in state court.

Answer 27

c. i. It becomes removable if P voluntarily dismisses the claim against D-2. But watch the dates. ii. Suppose P dismissed the claim against D-2 six months after the case was filed in state court. D-1 may remove within 30 days of service of the dismissal, BUT iii. Instead, say P voluntarily dismissed the claim against D-2 a year and a day after P had filed the case in state court. The in-state D is now gone and there is diversity. But can D-1 removed? 1. Yes, but it should be remanded because it’s a diversity case and was removed more than one year after it was filed in state court. a. (Unless D-1 shows that P acted in bad faith by originally joining D-2 to prevent removal.)

Answer 28

v. | 1. D removes to the federal district “embracing” the state court where the case was filed.

Answer 29

vi. 1. No need to get permission from the state or federal court – can remove even if it’s not proper to remove 2. D files a “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ). 3. D attaches all documents that were served on her in state action. She “promptly” serves a copy of the “notice of removal” on adverse parties. Then she files a copy of the “notice of removal” in state court.

Answer 30

vii. 1. If P thinks the case should not have been removed, she moves to remand to state court. 2. If P thinks removal was improper for some reason other than lack of SMJ (e.g., D did not attach relevant papers to her notice of removal), she must move to remand no later than 30 days after notice of removal was filed in federal court. a. If she does not, she waives the right to have the case remanded to state court; in other words, the case will stay in federal court. 3. If P thinks removal was improper because the federal court lacks SMJ, she can remove it at any time – there’s no time limit.

Answer 31

i. Supplemental jurisdiction is a form of federal SMJ. But it is fundamentally different from diversity and FQ. Diversity and FQ get cases into federal court. Supplemental jurisdiction does not. Instead, it gets claims into a federal case even though the claims do not invoke diversity of citizenship or FQ.

Answer 32

b. Starting Point i. We must have a case that is already in federal court. So the case invoked diversity or FQ and is pending in federal court.

Answer 33

c. Now Focus on Additional Claims i. In any case in federal court, additional claims might be asserted in that case: e.g., maybe P has additional claims, or maybe there’s a counterclaim or crossclaim, etc. ii. The federal court must have SMJ over every single claim in the case. 1. If it does not, it cannot be asserted in the pending case in federal court. That means that each additional claim is tested to see if it invokes diversity of citizenship or federal question 2. If an additional claim satisfies either diversity of citizenship or FQ, it can be heard in the federal court case. But what if the additional claim does NOT satisfy diversity of citizenship or FQ? The federal court can still hear the claim if it invokes supplemental jurisdiction. a. So, supplemental jurisdiction gets claims into a federal court case, even though the claims do not meet diversity of citizenship and do not meet FQ.

Answer 34

i. The case is properly in federal court. Now we have a claim in that case that does not, by itself, invoke diversity or FQ. We want to get that claim into the pending case through supplemental jurisdiction. Think of two steps: 1. The Test 2. The Limitation

Answer 35

The claim we want to get into federal court must share a “common nucleus of operative fact” with the claim that invoked federal SMJ (the claim that got the case into federal court). b. When is “the test always met? When a claim arises from the same transaction or occurrence as the underlying case. i. T/O always meets the test.

Answer 36

a. BUT by statute certain claims cannot invoke supplemental jurisdiction even though they meet “the test.” The limitation applies only in diversity cases. i. In a diversity case, claims by P’s cannot invoke supplemental jurisdiction. b. Exception to this limitation: When there are multiple P’s and the claim by one of them does not meet the amount in controversy requirement.

Answer 37

ii. Summary of Supplemental Jurisdiction: So a non-federal, non-diversity claim can be heard in federal court if it meets “the test” UNLESS it is: 1. Asserted by a P 2. In a diversity of citizenship (not FQ) case AND 3. It’s not under the exception to the limitation.

Answer 38

e. Discretionary Factors i. 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 federal claim was dismissed early in the case.

Answer 39

1. STEP 1. Ask: Is there some federal law (like federal constitution or statute or FRCP or Federal Rule of Evidence) on point that directly conflicts with state law? If so, apply the federal law, as long as it is valid. 2. 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.” Five issues are clearly substantive: 3. STEP 3. If there is no federal law on point and the issue is not one of the five above, the federal judge must determine whether the issue is “substantive.” The law is very unclear, consisting of some factors that on one knows how to weigh:

Answer 40

a. This is based on the supremacy clause. b. If a FRCP is on-point and conflicts with state law, we know it governs as long as it’s valid. How do we know if a FRCP is valid? The FRCP are presumptively valid and are OK if they are “arguably procedural.” None has ever been held invalid.

Answer 41

Five issues are clearly substantive: a. Elements of a claim or defense b. Statutes of limitations c. Rules for tolling of statutes of limitations d. Conflict (or choice) of law rules, and e. Standard for whether to grant a new trial because a jury’s damages determination is excessive or inadequate. f. On these five issues the federal court must apply state law in a diversity case

Answer 42

3. STEP 3. If there is no federal law on point and the issue is not one of the five above, the federal judge must determine whether the issue is “substantive.” The law is very unclear, consisting of some factors that on one knows how to weigh: a. Outcome determinative: Would applying or ignoring the state rule affect outcome of case? If so, it’s probably a substantive rule, so should use state law. b. Balance of Interests: Does either federal or state system have strong interest in having its rule applied? c. Avoid Forum Shopping: If the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, should probably apply state law.

Answer 43

c. Federal Common Law i. 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. 1. Examples: international relations, admiralty, disputes between states, the right to sue a federal officer for violating one’s federal rights. In these areas, there is no role for state law. 2. One important area of federal common law is the preclusive effect of a federal judgment.

Answer 44

a. Basic Idea i. Subject matter jurisdiction told us we can take a case to federal court. Venue tells us exactly which federal court. The country is divided into federal districts. P is suing in federal court and wants to lay venue in a proper district.

Answer 45

b. Basic Choices i. P may law venue in any district where: 1. All defendants reside a. Special rule: If all D’s reside in different districts of the forum state, P can lay venue in the district where any D resides. 2. A substantial part of the claim arose

Answer 46

ii. Note: The provisions above do NOT apply if the case was REMOVED from state to federal court. There, venue is in the federal district embracing the state court where the action was filed. These rules are for cases initially filed in federal court.

Answer 47

iii. A substantial part of a claim may arise in more than one district

Answer 48

iv. For venue, it does not matter where P resides

Answer 49

v. For venue, it does not matter whether it’s a diversity or FQ case – it’s the same in both

Answer 50

vi. If D does not reside in the U.S., venue is ok in any district

Answer 51

vii. But if another D does reside in the U.S., venue must be proper as to her in accordance with the rules above.

Answer 52

i. A person resides in the district where they are domiciled

Answer 53

ii. A business (corporation or unincorporated) resides in all districts where subject to PJ for this case

Answer 54

i. 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. Terminology: The original court is the “transferor,” and the one to which the case is sent is the “transferee.” 1. BUT, the transferee must be a proper venue and have PJ over the D—and generally those must be true without waiver by D.

Answer 55

ii. Exception: Under transfer statute #1 (below), the court can transfer to any district (even an improper venue) if all parties consent and the court finds cause for the transfer. It is unlikely that P will consent to this, so it’s not clear this happens much.

Answer 56

1. Statute #1: If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and in the interest of justices. a. Because transfer overrides P’s choice of forum (and because P chose a proper venue), the burden is on the person seeking transfer (usually D). In deciding whether to transfer the case, the court considers public and private factors showing that the transferee is the center of gravity. i. Public: Things like what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court. ii. Private: Convenience. For example, where the evidence and witnesses are.

Answer 57

1. The existence of a valid forum selection clause prescribing venue in the other federal district establishes that the private factors support transfer a. A forum-selection clause is a provision in which the parties agree that a dispute between them will be litigated in a particular place. b. If one party sues the other in violation of a forum selection clause, the D may seek to enforce the forum selection clause through a motion to transfer (assuming the forum selection clause called for litigation in a proper federal district). c. Federal law enforces forum-selection clauses (if they’re not unreasonable). Some states do not. In federal court, federal law governs transfer. So, a federal court may enforce a forum selection clause even though a state court in that state would not.

Answer 58

2. Statute #2: If the original district is an improper venue, what may that court do? It may transfer in the interest of justice or dismiss. a. Usually the court will transfer if possible. When it does, the transferee applies the choice-of-law rules of the state in which it sits (a diversity case), and NOT the choice-of-law rules of the transferor district.

Answer 59

e. Forum Non Conveniens i. Like transfer, there is another court that is the center of gravity, that makes more sense than the present court. But here, the court does not transfer to the more convenient court. It dismisses or stays the case.

Answer 60

1. To stay means to hold in abeyance; nothing happens in the case. It just sits there. Whether it dismisses or stays, the idea is that P will then sue in the other court.

Answer 61

2. Because the more convenient court is in a different judicial system (e.g., a foreign country), so transfer is impossible.

Answer 62

3. The decision is based on the same public and private factors as transfer above, including the existence of a valid forum selection clause.

Answer 63

4. The other court must be available and “adequate.” Suppose the center-of-gravity court, which is in a foreign country, does not permit jury trials, recovery for pain and suffering, or other remedies. Does that make the foreign court inadequate? No, it is ok unless P can get no remedy.

Answer 64

VII. Pleadings a. Complaint i. Filing this commences an action

Answer 65

ii. Requirements 1. The complaint must contain a. A statement of grounds for SMJ b. A short and plain statement of the claim, showing entitled to relief, c. A demand for relief sough (e.g., damages, injunction, declaratory judgment) d. Need not allege grounds of PJ or venue 2. Twombly Iqbal standard: must plead facts supporting a plausible claim. a. To determine plausibility, the judge uses her own experience and common sense. b. D can challenge the complaint by making a Rule 12(b)(6) motion.

Answer 66

iii. Particularity 1. Three matters must be pleaded with particularity or specificity: a. Fraud, mistake, and special damages.

Answer 67

i. Rule 12 requires D to respond in one of two ways: 1. By motion, or 2. By answer.

Answer 68

ii. To avoid default, D must do one of these two things no later than 21 days after being served with process.

Answer 69

iii. If D waived service, D has 60 days from when P mailed the waiver form.

Answer 70

iv. Motions (Rule 12) 1. Motions are not pleadings; they are requests for a court order. 2. Issues of form: a. 12(e) motion for more definite statement—the complaint is so vague or ambiguous D simply cannot respond; must make this motion before answering b. 12(f) motion to strike—asks the court to remove redundant or immaterial things from pleadings; any party may move for this. 3. Rule 12(b) defenses

Answer 71

a. (1) lack of SMJ b. (2) lack of PJ c. (3) improper venue d. (4) improper process (problem with the papers) e. (5) improper service of process f. (6) failure to state a claim g. (7) failure to join indispensable party. h. These defenses can be put either in a motion to dismiss or in the answer. NOTE: 2, 3, 4, and 5 are WAIVABLE BY D

Answer 72

Waivable defenses must be put in the FIRST rule 12 response (motion or answer) or else they’re waived. a. D can raise a failure to state a claim (rule 12(b)(6)) or a failure to join an indispensable party (rule 12(b)(7)) any time through trial b. There is NO time limit for raising lack of SMJ i. Whenever the court determines that it has no SMJ, it MUST dismiss (or, if the case had been removed from state court, must remand to state court).

Answer 73

v. The answer 1. It is a pleading. D does two things in the answer: a. Respond to allegations of complaint b. Raise affirmative defenses

Answer 74

i. Admit; ii. Deny; iii. State that you lack sufficient information to admit or deny 1. This has the effect of a denial, but you cannot use it if the answer to the question is in your control. 2. Failure to deny constitutes an admission except as to damages.

Answer 75

i. These inject a new fact into the case, which will allow D to win. Classic affirmative defenses are statute of limitations, statute of frauds, res judicata, self-defense. All Rule 12(b) defenses are also affirmative defenses. ii. If D fails to assert an affirmative defense in the answer, she may be deemed to have waived it. iii. If D asserts an affirmative defense, P need not respond to the answer. The allegations in D’s answer are deemed denied.

Answer 76

i. Right to Amend: ii. There is No Right to Amend: 3. Variance iv. Amendment after the Statute of Limitations Has Run (“Relation Back”)

Answer 77

i. Right to Amend: 1. P has a right to amend her complaint once no later than 21 days of after D serves her first Rule 12 response (either a motion or answer). 2. D has a right to amend her answer once no later than 21 days of serving her answer. a. D’s first response was an answer, in which she forgot to raise a waivable defense and forgot to raise an affirmative defense – she has a right to amend her answer; can she now assert the waivable defenses and affirmative defense? Yes!

Answer 78

ii. There is No Right to Amend: 1. Must seek leave of court. It will be granted if “justice so requires.” Courts look to these factors when ruling on this: delay, prejudice, and futility of amendment.

Answer 79

iii. Variance: | 1. That’s where the evidence at trial does not match what was pleated.

Answer 80

iv. 1. a. P files his complaint and has process served on July 1. The statute of limitations runs on July 10. In August, P seeks leave to amend to add a claim. Is that claim barred because the statute ran? i. Not barred if the amendment relates back b. Rule: Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading. i. 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. So on this hypo, we would treat the August amendment as though it was filed on July 1, so it is timely.

Answer 81

iv. 2. a. The amendment will relate back if: i. The amendment concerns the same conduct, transaction, or occurrence as the original ii. The new D knew of this case within 90 days of filing iii. She also knew or should have known that, but for a mistake, she would have been named originally. b. This applies when P sued the wrong D first, but the right D knew about it.

Answer 82

d. i. These set forth things that happened after the pleading was filed. 1. There is never a right to file a supplemental pleading. 2. You must make a motion; whether it should be granted is at the discretion of the court.

Answer 83

i. Applies to all documents except discovery (which are treated by a different rule)

Answer 84

ii. When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry 1. The paper is not for an improper purpose, and 2. The legal contentions are warranted by law (or nonfrivilous argument for law change), and 3. The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).

Answer 85

iii. In addition, you make this certification every time you “present” a position to the court (e.g., when you later advocate a position taken in the document). It is a “continuing certification.”

Answer 86

iv. If there is a violation (e.g., assertion of a baseless claim), Rule 11 sanctions may be ordered against the party, attorney, or firm responsible 1. (General rule: Law firm is jointly responsible with its attorney who violates Rule 11.)

Answer 87

v. Before imposing a sanction on you, the court must give you a chance to be heard.

Answer 88

vi. The purpose of Rule 11 sanctions is to deter, not punish.

Answer 89

vii. Often, courts impose non-monetary sanctions (e.g., require lawyer to attend professionalism classes). Monetary sanctions, if imposed, are often paid to court, not to the other party.

Answer 90

viii. If the other party violates Rule 11, you must first serve the Rule 11 motion on the other parties but you cannot file it. 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.

Answer 91

ix. The court can raise Rule 11 problems sua sponte, and in that scenario there is no safe harbor 1. To do so, the court usually issues an “order to show cause” why sanctions should not be imposed. The court must give a chance to be heard before imposing a sanction on anyone.

Answer 92

a. Basic Idea i. Joinder rules define the scope of the case—how many parties and claims can be joined in one case? Remember: every single claim in federal court must have SMJ.

Answer 93

b. Claim Joinder by Plaintiff i. This is easy. P (in fact, anyone asserting a claim) may join any additional claim she likes—even if the additional claim is unrelated to the original claim.

Answer 94

b. Claim Joinder by Plaintiff ii. Example 1. P sues D for (1) breach of contract, (2) an unrelated tort, (3) an unrelated violation of consumer protection statutes, and (4) for cheating at poker. This is OK.

Answer 95

d. Necessary and Indispensable Parties i. The case has been filed. Now the court might force some nonparty (“absentee”) to join in the case. 1. A court would force a nonparty into the case because he is necessary. 2. There are three steps for analyzing these situations: ii. Step one: Who is necessary? iii. Step two: Who can be joined? iv. Step three: If “A” cannot be joined

Answer 96

ii. Step one: Who is necessary? 1. An absentee (A) who meets any of these tests: a. Without A, the court cannot accord complete relief among existing parties (worried about multiple suits); OR b. A’s interest may be harmed if he is not joined (practical harm); OR c. A claims an interest that subjects a party (usually D) to risk of multiple obligations. 2. Test B is most likely to be tested on the bar 3. Note: joint tortfeasors are never necessary

Answer 97

iii. Step two: Who can be joined? 1. So you are necessary. NOW see if your joinder is “feasible.” It is feasible if: (1) there is PJ over you and (2) joining you will not goof up diversity jurisdiction (the court determines whether you would come in as a P or a D to see if bringing you in will goof up diversity. 2. If your joinder is feasible, the court orders joinder of the absentee.

Answer 98

iv. Step three: If “A” cannot be joined 1. What happens if you (A) cannot be joined (e.g., no PJ over you)? The court must do one of two things: a. Proceed without A or dismiss the entire case. 2. How does the court make that decision? It looks at these factors: a. Is there an alternative forum available? (maybe some state court); b. What is the actual likelihood of harm to you? c. Can the court shape relief to avoid that harm to you? 3. What happens if the court decides to dismiss rather than proceed without you (A)? a. We call A indispensable b. (Remember, that’s a Rule12(b) defense – dismiss for failing to join an indispensable party.)

Answer 99

e. Claim Joinder by Defendant i. Counterclaim 1. A claim against an opposing party. Once somebody asserts a claim against you, you are opposing parties. Your claim back against that person is a counterclaim. Usually, this is a claim by D against P. The counter-claim is part of D’s answer.

Answer 100

2. After D serves a counter claim, P must respond under Rule 12 within 21 days of service.

Answer 101

3. There are two types of counterclaims: a. (1) Compulsory: Arises from the same T/O as P’s claim. Unless you have already filed the claim in another case, you must assert it in this case. i. If you do not use it, you lose it ii. Is this unique? YES. This is the only compulsory claim in the world. b. (2) Permissive: Does not arise from same T/O as P’s claim. Permissive means you are not required to file it in this case. You may sue on it in a separate case. i. SMJ: We must assess whether the counterclaim invokes diversity of FQ jurisdiction. If so, it’s OK in federal court. If not, we try supplemental jurisdiction.

Answer 102

ii. Crossclaim: This is a claim against a co-party. It must arise from the same T/O as the underlying action. But it is not compulsory—you may assert it here or sue separately.

Answer 103

f. Impleader i. Here, a defending party (usually D) is bringing in someone new. The new party is the third-party defendant (3PD). 1. On the bar exam, they may call this 3P Practice. 2. If you have an impleader, you do not have to assert it in this case. a. Remember: the ONLY compulsory claim is the compulsory counterclaim.

Answer 104

ii. D can do this only to shift to the 3PD the liability that D will owe to P. So if D is found liable to P, he will try to get 3PD to pay all or part of his own liability.

Answer 105

iii. Easy way to spot it: this is almost always a claim for indemnity or contribution. 1. Those claims shift the liability that D owes P over to 3PD. Indemnity shifts it completely (so 3PD must cover the full claim). Contribution shifts it pro-rata (so 3PD must cover a pro-rata portion of the claim).

Answer 106

iv. Steps for impleading the 3PD in the pending case: 1. D files a third-party complaint naming the 3PD; and 2. Serve process on the 3PD. (So must have PJ over 3PD.)

Answer 107

v. There is a right to implead within 14 days of serving your answer. After that, you need court permission.

Answer 108

vi. After 3PD is joined, plaintiff may assert a claim against 3PD if the claim arises from the same T/O as the underlying case.

Answer 109

vii. After 3PD is joined, may 3PD assert a claim against P? Yes, if the claim arises from the same T/O as the underlying case

Answer 110

viii. SMJ: Remember to assess each claim separately for SMJ. Try diversity and FQ. If neither works, try supplemental jurisdiction.

Answer 111

g. Intervention i. Here, a nonparty brings herself into the case. She chooses to come in either as P (to assert a claim) or as D (to defend a claim). The court may realign her if it thinks she came in on the “wrong” side. Application to intervene must be “timely.”

Answer 112

ii. Intervention as of right. A’s interest may be harmed if she is not joined and is not adequately represented now. Why does this sound familiar? It’s the same as test B for necessary parties!

Answer 113

iii. Permissive Intervention. A’s claim or defense and the pending case have at least one common question. Discretionary with court. Usually OK unless intervention will cause delay or prejudice to someone.

Answer 114

iv. SMJ: Assess whether the claim by/against the intervenor invokes diversity or FQ. 1. If neither applies, then try supplemental. Remember, though, a claim by an intervenor plaintiff in a diversity case is a claim by a plaintiff, so the limitation on supplemental jurisdiction may apply.

Answer 115

h. Class Action i. Representative(s) sues on behalf of group ii. Initial Requirements. Must demonstrate all four of these: 1. Numerosity: Too many class members for practicable joinder. Is there a magic number? NO! 2. Commonality: There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke. 3. Typicality: Rep’s claims are typical of those of the class; AND 4. Representative adequate: The class rep will fairly and adequately represent the class

Answer 116

iii. Types of class action. You must satisfy one of the three: 1. Prejudice: 2. Class seeks injunction or declaratory judgment because D treated the class members alike 3. Damages class

Answer 117

1. Prejudice: a. Class treatment necessary to avoid harm (prejudice) either to class members or to the non-class party. b. Many people have claims to a limited fund of money. If they sue individually, the fund will be depleted before all claimants get to court. That would leave those later claimants with nothing. To avoid this harm, a class would allow everybody to recover at least a portion of her claim i. Rare

Answer 118

2. Class seeks injunction or declaratory judgment because D treated the class members alike a. Example: employment discrimination b. Type 2 class generally cannot seek damages

Answer 119

3. Damages class a. (1) common questions predominate over individual questions; AND (2) class action is the superior method to handle the dispute i. Example: a mass tort ii. SO if a bus crash injures 80 people there will be individual questions about damages, but the common questions (like whether the driver was negligent) may predominate. And the class action may be superior to 80 separate suits.

Answer 120

iv. Rep’s complaint will say “class action.” But a case is not a class action until the court grants a motion to certify a class action. 1. And when it certifies the class action, the court must “define the class and the class claims, issues, or defenses.”

Answer 121

2. The court must also appoint class counsel; class counsel must fairly and adequately represent the interests of the class.

Answer 122

3. If you lose on the class certification motion, you may ask the court of appeals to review that decision. It’s discretionary with that court.

Answer 123

v. In the Type 3 class, the court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. 1. The notice tells them various things, including: a. They can opt out b. They’ll be bound if they don’t and c. They can enter a separate appearance through counsel 2. This notice is required only in type 3 class actions 3. The representative pays to give this notice

Answer 124

vi. Who is bound by the judgment in a certified class action? 1. All class members except those who opted out of a type 3 class action a. There is no right to opt out of a type 1 or type 2 class action

Answer 125

vii. Parties can only settle or dismiss a certified class action with court approval 1. And, in all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed. 2. If it’s a type 3 class, the court might give members a second chance to opt out – it would reject the settlement.

Answer 126

viii. SMJ: 1. A class action might assert rights under federal law, which would invoke FQ. 2. Suppose the class seeks to invoke diversity jurisdiction a. For citizenship, we consider only the rep (ignore other class members’ citizenships) b. For amount in controversy, the rep’s claim must exceed $75,000 (ignore other class members’ claims). 3. That means: As long as the rep is diverse from all D’s, and as long as the rep’s claim exceeds $75,000, the class action will invoke diversity.

Answer 127

ix. Class Action Fairness Act (CAFA). This grants subject matter jurisdiction separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action (of at least 100 members) if any class member (not just the rep) is of diverse citizenship form any defendant and if the aggregated claims of the class exceed $5 million. This makes it easier for interstate class actions to go to federal court. 1. There are complicated provisions to ensure that local classes (where most class members and the primary defendants are citizens of the same state) do not stay in federal court; they get dismissed (or, if they were removed from state court, are remanded to state court).

Answer 128

IX. Discovery a. Basic Idea i. Discovery is the phase of litigation in which we find out what other people know. The idea is to avoid trial by ambush—we want things known before we go to trial.

Answer 129

b. Initial Required Disclosures | i. This is information that each party must give to other parties—even though no one asks for it.

Answer 130

ii. Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference, what must each party disclose? 1. Identities of persons who have discoverable info that you (the disclosing party) may use to support your claims or defenses. a. What info do you give about these people? Name, telephone number, address, and topics on which they have evidence. 2. Documents and things you may use to support your claims or defenses. You may produce copies or a description of these things. 3. The info to be disclosed includes photographs, recordings and electronically stored info (ESI) a. So it includes things on your computer, videos, and photos taken on your smartphone, etc., as well as good old-fashioned papers 4. The info to be disclosed includes tangible things 5. What if you are aware of documents, ESI, or things that support your case, but they are not in your custody or control? NO! Only things in your control.

Answer 131

iii. Computation of relief and documents/ESI supporting it. | 1. Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought.

Answer 132

iv. Insurance Coverage. D must disclose any insurance that might cover all or part of the judgment in the case. 1. This is true even though existence of such insurance will probably be admissible at trial – discoverable is broader than admissible

Answer 133

2. If you fail to disclose something you were required to disclose, you cannot use that material in the case (unless the failure to disclose was substantially justified or harmless).

Answer 134

c. Required disclosures about expert witnesses i. Later in the case, at a time directed by the court, each party must identify expert witnesses “who may be used at trial.” We are talking here about people who, because of expertise, are hired to give opinion testimony in the case.

Answer 135

ii. Suppose a party hired an expert to help it prepare the case, but does not intent to call that expert to testify at trial – this is not an expert witness; this is a consulting expert.

Answer 136

1. Facts known and opinions held by consulting experts are generally not discoverable—only in “exceptional circumstances.”

Answer 137

iii. As to an expert witness “who may be used at trial,” each party must disclose to other parties the identity of the expert witness and a written report by the expert witness

Answer 138

1. The written report must include: a. Opinion expert witness will express b. Bases for the opinions c. Facts used to form the opinions d. Expert witnesses qualifications, and e. How much expert witness is being paid

Answer 139

2. Thereafter, a party may take the deposition of the expert witness a. That party should subpoena expert witness to compel her attendance b. That party must pay the expert witness a reasonable fee per hour (set by the court).

Answer 140

3. Earlier drafts of expert witness report and communications between the lawyer and the expert witness are work product

Answer 141

4. If you fail to disclose something you were required to disclose, you cannot use the expert witness in the case unless your failure was justified or harmless

Answer 142

iv. Required Pretrial Disclosure 1. No later than 30 days before trial, must give detailed information about trial evidence, including identity of witnesses to testify live or by deposition and documents/ESI/things to be introduced at trial

Answer 143

v. Discovery Tools 1. Here one party requests information from other people. Assuming no court order or stipulation provides otherwise, a party cannot send discovery requests to another party until after the rule 26(f) conference. a. Minor exception: you can serve requests to produce earlier—more than 21 days after service of process. They are treated as though served at the Rule 26(f) conference.

Answer 144

2. Depositions a. Here, 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 reporter0. Deponent testifies under oath. The deposition is recorded by sound or video or stenographically and a transcript can be made.

Answer 145

b. You can “notice” the deposition of a party or of a non-party, but you should subpoena a non-party i. You don’t need to subpoena a party; just serve “notice of deposition.”

Answer 146

3. The deponent is not required to review all her relevant files and notes before being deposed – she testifies from present recollection

Answer 147

4. A subpoena duces tecum requires the deponent to bring requested materials with her

Answer 148

5. Unless a nonparty agrees, 100 miles from where she resides or is employed is the farthest she can be required to travel to have her deposition taken

Answer 149

6. Limits on Depositions: you cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.

Answer 150

7. Use of depositions at trial (all subject to rules of evidence): a. Impeach the deponent; b. Any purpose if the deponent is an adverse party; c. Any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.

Answer 151

iii. Interrogatories 1. Sent only to parties; never to nonparties. 2. These are written questions, to be answered in writing under oath

Answer 152

interrogatories 3. The party has 30 days from service (extra 3 days if they were mailed) in which to respond with her answers or objections

Answer 153

4. Can you respond to interrogatories by saying that you don’t know the answer? No, you must respond based upon information reasonably available to you.

Answer 154

5. The maximum number of interrogatories you can send to a party (unless there is a court order or stipulation for more) is 25 a. That includes subparts, so no more than 25 actual questions

Answer 155

6. If the answers to interrogatories can be found in business records and the burden of finding them would be about the same for either party, the responding party can allow the requesting party to have access to the records.

Answer 156

7. At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence.

Answer 157

iv. Requests to Produce 1. These request that someone make available for review and copying documents or things, including electronically stored information (ESI), or to permit you to enter designated property to inspect, measure, etc. The person must respond in writing within 30 days of service, stating that the material will be produced or asserting objections.

Answer 158

iv. Requests to Produce | a. You can make these requests only of parties; you can get the same info from non-parties with a subpoena

Answer 159

2. In what form is ESI to be produced? The requesting party specifies the form; responding party may object.

Answer 160

v. Medical Exam (Physical or Mental) 1. Unique because you must get a court order a. To get the court order, you must show: (1) that the person’s health is in actual controversy and (2) good cause. b. Who can be ordered to undergo a medical exam? A party or someone in the party’s custody or legal control. This is narrow (e.g., an employee is not in the custody or legal control of an employer).

Answer 161

vi. Request for admission 1. Sent only to parties; never to nonparties. 2. This is a written request that someone admit things. Responding party must respond in writing within 30 days of service either denying specifically or objecting.

Answer 162

3. Can the responding party say she does not know the answer? Only if she states she made a reasonable inquiry and cannot find enough information from which to admit or deny. req for admission

Answer 163

req for admission | 4. Often used to authenticate documents—“admit that this is the contract.”

Answer 164

5. Parties Sign Substantive Answers to Discovery Under Oath a. Rule 11 does not apply to discovery documents. By another Rule, every discovery request and response is signed by counsel certifying: i. It is warranted, ii. It is not interposed for an improper purpose, and iii. It is not unduly burdensome

Answer 165

6. Duty to Supplement a. After you respond to discovery, suppose circumstances in the real world change. In light of these new circumstances, your response to a required disclosure, interrogatory, request for production, or request for admission is now incomplete or incorrect. i. Now, you have a duty to supplement your response.

Answer 166

i. Standard 1. You can discover anything relevant to a claim or defense and proportional to the needs of the case a. Discoverable is broader than admissible at trial. 2. Something harmful to you need not be disclosed in required disclosures, but may well be discoverable using the regular discovery tools.

Answer 167

ii. Privilege 1. You can object to discovery on the basis of evidentiary privilege—e.g., confidential communications between attorney and client.

Answer 168

iii. Work Product 1. Work product or “trial preparation materials’ (material prepared in anticipation of litigation). a. Work product could be generated by the party or any representative of the party 2. Work product can also be in electronic format 3. It covers anything that was prepared in anticipation of litigation

Answer 169

4. A party could discover some of work product if it is “qualified work product” – they show a. Substantial need and b. Not otherwise available

Answer 170

5. Absolute work product – cannot be discovered a. Mental impressions, opinions, conclusions, and legal theories are usually referred to as opinion work product and are absolutely protected

Answer 171

6. Party has the right to demand discovery of any previous statement that has been made regarding the case.

Answer 172

7. Asserting privilege or work product a. If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail. i. You do this in a document that lists the materials protected by date, author, recipient, and privilege or protection claimed. It must be in enough detail to allow the judge to determine whether the material is protected. This document is called a privilege log.

Answer 173

8. If you inadvertently produce privileged or protected material, you should notify the other party promptly. The other party then must return, sequester, or destroy it pending decision by the court about whether there has been a waiver.

Answer 174

g. Enforcement of Discovery Rule i. There are three ways courts get involved in discovery disputes: 1. Protective order 2. Responding party responds, but not fully 3. No response to discovery request

Answer 175

1. Protective order a. If the responding party thinks a discovery request subjects it to annoyance, embarrassment, undue burden or expense (e.g., ESI is not reasonably accessible without undue expense (e.g., deleted files) or the request is cumulative and not proportional to the case), she can move for a protective order i. She must certify that she tried in good faith to resolve the issue without court involvement – that she asked the other side to “meet and confer” 1. If the court agrees, it can a. Deny discovery or b. Limit it or c. Permit it on specified terms.

Answer 176

2. Responding party responds, but not fully a. Here, the responding party does respond, but fails to answer all questions, because he objects to them (or some of them).

Answer 177

3. No response to discovery request a. Here, the responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production.

Answer 178

h. Sanctions Against a Party i. The party seeking sanctions generally must certify that she tried in good faith to get the info without court involvement – to meet and confer

Answer 179

1. Less than full response: (2 steps of sanctions) a. You move for an order compelling the party to answer the unanswered questions plus costs (including attorney’s fees) of bringing motion b. If the party violates the order compelling him to answer, “merits” sanctions plus costs (and attorney’s fees for the motion) and could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam).

Answer 180

2. No Response (one step) a. “Merits” sanctions plus costs (and attorney’s fees for the motion). Here, there is no need to get an order compelling answers. Go directly to “merits” sanctions.

Answer 181

ii. Merits Sanctions (choices available to judge) 1. Establishment order (establishes facts as true) 2. Strike pleadings of the disobedient party (as to issues re the discovery) 3. Disallow evidence from the disobedient party (as to issues re the discovery) 4. Dismiss plaintiff’s case (if bad faith shown) 5. Enter default judgment against D (if bad faith shown)

Answer 182

iii. Litigation Hold 1. When litigation is reasonably anticipated, parties must preserve discoverable information 2. Suppose ESI is truly LOST—it cannot be recovered or restored. And suppose 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. 3. Can the court enter an “adverse inference” order: tell the jury that it must presume that the lost info would be unfavorable to the party that lost the ESI? a. Only if that party lost the ESI with the intent to deprive you of it

Answer 183

X. Adjudication Without Trial a. Basic Idea i. There are various ways a case can be resolved without going to trial. In addition, we need to know about “provisional” (temporary) injunctive relief.

Answer 184

b. Preliminary Injunctive Relief i. Here, P is planning to file suit (or has sued). P is worried that before suit can go to trial, D may do (or fail to do) something that will prejudice P’s case. P wants injunctive relief – a court order that D either (1) do something or (2) refrain from doing something. The court is nervous about doing this because the merits of the underlying dispute have not been decided.

Answer 185

ii. An order that maintains the status quo until trial is a preliminary injunction iii. Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek a temporary restraining order

Answer 186

c. Temporary Restraining Order i. Whenever a court does something without giving notice to the other party, it may be called “ex parte.” ii. The court issues a TRO ex parte ONLY if 1. Applicant files a paper under oath clearly showing that if the TRO is not issued, he will “suffer immediate and irreparable harm” if he must wait until the other side is heard 2. Applicant’s lawyer certifies in writing her efforts to give oral or written notice to D or D’s lawyer (or why such notice should not be required in this case).

Answer 187

iii. If the court issues the TRO, applicant must post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

Answer 188

iv. A TRO must state its terms specifically, describe in detail what D must do (or refrain from doing), state why it was issued, and why the threatened injury to P was irreparable.

Answer 189

v. If the court issues a TRO, the order must be served on D as soon as possible.

Answer 190

vi. If the court issues a TRO, the D can move to dissolve the TRO

Answer 191

vii. TRO is effective for no more than 14 days (or lesser time stated by the court). If applicant shows good cause before expiration, it can be extended for up to another 14 days. So a TRO cannot extend beyond 28 days. If the court extends a TRO beyond 28 days, it may be treated as a preliminary injunction.

Answer 192

viii. A ruling granting or denying a TRO is not appealable as of right

Answer 193

d. Preliminary Injunction i. Maintains status quo until the court can adjudicate the underlying claim on the merits ii. A preliminary injunction can never be granted ex parte

Answer 194

iii. The burden is on the applicant to show 1. He is likely to suffer irreparable harm if the injunction is not issued 2. He is likely to win on the merits of the underlying case 3. The balance of hardship favors him (threatened harm to applicant outweighs harm to other party if injunction is issued) and 4. The injunction is in the public interest

Answer 195

iv. There is no right to an injunction. The matter is in the court’s discretion.

Answer 196

v. As with a TRO, if the court grants the preliminary injunction, the applicant must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued.

Answer 197

vi. In granting or denying the preliminary injunction the court must make specific findings of fact and separate conclusions of law.

Answer 198

vii. An order granting or denying a preliminary injunction is appealable as of right

Answer 199

e. Voluntary Dismissal i. P wants to withdraw the case. P can make a motion for voluntary dismissal any time, which the court has discretion to grant. ii. P has a right to take a voluntary dismissal by filling a “notice of dismissal.” But she must do so before D serves an answer or motion for summary judgment iii. If P files a timely notice of dismissal, the case is dismissed “without prejudice.” This means P can re-file the case. 1. But you only get to do it without prejudice once. If it is dismissed without prejudice, P cannot re-file.

Answer 200

f. Default and Default Judgment i. D does not respond to the complaint in time (21 days after being served with process; 60 days from mailing or waiver if you waived service).

Answer 201

ii. Default 1. A default is a notation by the court clerk on the docket sheet in the case. 3. P must demonstrate that D failed to respond in time. Until default is entered, D can respond by motion or answer (even beyond 21 days). 5. Entry of default does not entitled P to recover – to do so, P must get a default judgment

Answer 202

2. Does the court clerk enter default automatically on the 22nd day after service of process on D? a. No – P must request entry of default

Answer 203

4. The effect of entry of default: it cuts off D’s right to respond

Answer 204

iii. Default judgment 1. How to get a default judgment – The clerk of court can enter judgment if: a. D made no response at all b. The claim itself is for a sum certain in money c. Claimant gives an affidavit (sworn statement) of the sum owed; AND d. D is not a minor or incompetent

Answer 205

2. If any of those is not true, though, where does P go for default judgment? a. Apply to the court itself i. The judge will hold a hearing and has discretion to enter judgment. D gets notice of this hearing only if he appeared in the case.

Answer 206

iv. Motions to set aside Default or Default Judgment 1. D may move to have the court set aside a default or default judgment by showing good cause (like excusable neglect) and a viable defense

Answer 207

g. Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)) i. This is about whether the case belongs in the litigation stream at all. If P’s complaint fails to state a claim, the case can be dismissed. ii. In ruling on this motion, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks: assuming these facts are true, do they state a plausible claim? 1. If the answer is no—P has not stated a plausible claim—there is no sense letting the case proceed, because the law does not recognize a claim on these facts. The court might let P amend to try to state a claim, though.

Answer 208

iii. Remember, the judge uses her experience and common sense to see if the facts state a plausible claim. 1. In ruling on this motion, the court does not look at evidence—looks at the face of the complaint

Answer 209

iv. The same motion, if made after D has answered, has a different name – a motion for judgment on the pleadings.

Answer 210

h. Motion for Summary Judgment (FRCP 56) i. Here, P stated a claim, so we’re in the litigation stream. But we might not need a trial. Summary judgment weeds out cases in which we don’t need trial. Why do we ever have a trial? 1. To resolve disputes of material fact.

Answer 211

ii. Party moving for SJ must show: 1. There is no genuine dispute on a material fact and 2. That she is entitled to judgment as a matter of law. iii. If the standard is met, the court does not HAVE to enter SJ – it has discretion to deny

Answer 212

iv. Any party can move for this no later than 30 days after the close of discovery.

Answer 213

v. The motion can be for partial judgment—e.g., as to liability, but allow the case to go to trial on damages.

Answer 214

vi. In SJ, the court CAN look at evidence. 1. The court views that evidence in the light most favorable to the nonmoving party. 2. The parties proffer the evidence, usually (1) affidavits or (2) declarations or (3) deposition testimony or (4) interrogatory answers. Why can these things be considered “evidence?” a. Because they’re under oath 3. If the opposing SJ 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.

Answer 215

Our case was not resolved through pretrial adjudication and may be adjudicated at trial.

Answer 216

Unless court order says otherwise, at least 21 days before scheduling order, parties “meet and confer.” They discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information. In addition, they must present a detailed discovery plan to the court.

Answer 217

It must be presented to the court no later than 14 days after the Rule 26(f) conference.

Answer 218

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 (e.g., deleted files), etc.

Answer 219

Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc. This is a roadmap for how the litigation proceeds up to trial.

Answer 220

The court may hold “pretrial conferences” to process the case. The final pretrial conference 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. So there are no surprises at trial

Answer 221

If we have a jury, it determines the facts and returns the verdict. If we don’t have a jury, the judge determines the facts (in a bench trial).

Answer 222

A pretrial motion to decide whether the jury should hear certain evidence.

Answer 223

The 7A preserves the right to jury in civil actions at law but not in suits at equity. What if a case includes both law and equity? Suppose a case includes a claim for damages (legal relief) and an injunction (equitable relief) The jury decides all facts underlying the damages claim but not the equity claim

Answer 224

The jury decides it

Answer 225

Try the jury issues first

Answer 226

Must demand the jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue. If you don’t, you waive the right to a jury. The last pleading addressing a jury issue is usually the answer.

Answer 227

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 – e.g., potential juror will not be impartial. How many motions to strike for cause can a party make? - No limit (2) peremptory – historically, one did not need to state a reason – you just dismiss the potential juror, is there a limit on the number of these strikes? - Yes – three per side

Answer 228

Peremptory strikes may only be used in race- and gender-neutral manner because jury selection is state action

Answer 229

Minimum 6, max 12 Generally all jurors participate in the verdict unless excused for good cause Unless parties agree otherwise, unanimous jury vote is required for a verdict.

Answer 230

1. The jury decides facts, but is instructed on the law by the judge. 2. Parties submit proposed jury instructions to the judge. They do this at the close of all evidence (or earlier if the court says so). 3. Before final argument and instruction, the court informs the parties of (1) what instructions it will give and (2) what proposed jury instructions it rejected 4. Must the parties be allowed to make specific objections (1) to the instructions and (2) to the rejection of proposed instructions? - Yes – they must be allowed to object on the record and out of the jury’s hearing. 5. If objections are not made before the jury is “charged” (given the instructions), the party cannot raise a problem with jury instructions in a post-trial motion or on appeal. 6. One exception: even if a party did not object timely, a court can consider a jury instruction if it contained plain error.

Answer 231

The judge determines what verdict for the jury will use. 1. General – this just says who wins and, if P wins, what the relief is 2. Special – here, the jury answers in writing specific written questions about the facts in dispute but does not tell us who wins or loses 3. General verdict with written questions – here, the jury not only gives a general verdict, but it also answers specific questions submitted to it. The quests ensure that the jury focused on the important issues.

Answer 232

If the jury returns a general verdict, the clerk of court enters the judgment If the jury returns a special verdict or general verdict with written questions, and the answers are consistent with each other and the verdict, the judge approves the judgment and the clerk enters it 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: - The court cannot enter a judgment - The court either instructs the jury to reconsider or orders a new trial

Answer 233

In general a verdict may be “impeached” based upon “external” matters. So if jurors were bribed, or based the verdict on their investigation of matters outside of court instead of the evidence at trial, a new trial can be ordered. Non-jurors may give first-hand evidence of such things. But a verdict will not be set aside if the misconduct was harmless – juror chatted for a moment with P about the weather (not the case)

Answer 234

When there is no jury (either 7A didn’t apply or the parties waived the right to a jury trial), the judge determines the facts at trial

Answer 235

- The judge must record her “findings of fact" – she must state them on the record or in writing - She must also record her conclusions of law stated separately from the findings of fact --- What else must be entered? 1. The judgment (the judgment is very short-just telling who wins and (if P won) the relief)

Answer 236

1. If the judge grants JMOL, the case will not go to the jury—the judge grants the motion and enters judgment. 2. The motion is based upon evidence presented at trial. Why would a judge grant JMOL and refuse to let the jury decide the case? - Because reasonable people could not disagree on the result

Answer 237

It’s like SJ (where there was no dispute of material fact), except that this comes up at trial instead of before trial. Like SJ, the court views the evidence in the light most favorable to the non-moving party.

Answer 238

After the other side has been heard at trial

Answer 239

P has been heard at trial.

Answer 240

This is the same as JMOL, except raised after judgment If RJMOL is granted, the court enters judgment for the party that lost the jury verdict (as with JMOL, the court views the evidence in the light most favorable to the non-moving party)

Answer 241

Within 28 days after entry of judgment

Answer 242

You must have moved for JMOL at proper time at trial. Failure to do so waives RJMOL. Not only that, but the RJMOL motion must be based upon the same grounds as the JMOL motion.

Answer 243

Judgment is entered but some error at trial requires that we should start over and have a new trial. This can be based on any (non-harmless) error that makes the judge think we should have a do-over. Party moves for this within 28 days after judgment.

Answer 244

1. Judge gave an erroneous jury instruction 2. New evidence that could not have been gotten before with due diligence 3. Misconduct by juror or party or lawyer 4. Judgment is against weight of the evidence (serious error of judgment) 5. Inadequate or excessive damages

Answer 245

Maybe a party met the standard for RJMOL but waived it by not moving for JMOL at trial. She could move for new trial on the grounds that the verdict is against the weight of the evidence Ordering new trial is less drastic than ordering RJMOL. Why? Because new trial results in starting over, so the same party might still win RJMOL results in taking judgment away from one party and giving it to the other.

Answer 246

One ground for new trial is that the jury’s damages figure is excessive or inadequate. What is the majority standard for ordering new trial on this ground? - The damages figure shocks the conscious --- But new trial is a lot of work. To avoid a new trial, the court might suggest remittitur or additur. 1. Remittitur – playing hardball with the P. 2. Additur – playing hardball with the D. - Additur violates the 7A. Because that applies only in federal court, state courts are free to recognize additur.

Answer 247

At least 14 days before trial, let’s say D offer to pay $50,000 to settle P’s claim. P can accept and judgment will be entered for that amount. Suppose P rejects and it goes to trial. P wins a judgment that is not more favorable than the offer. P is liable to D for D’s costs incurred after the offer was made.

Answer 248

Here, we ask the district court to set aside an order or judgment it entered. 1. Clerical error - can be done any time 2. Mistake, excusable neglect (including viable defense) - can be done within a reasonable time (never more than 1 year) 3. Fraud, misrepresentation, or misconduct by opposing party - can be done within a reasonable time (never more than 1 year) 4. New evidence that could not have been discovered with due diligence for a new trial motion - can be done within a reasonable time (never more than 1 year) 5. Judgment is void (e.g., no SMJ) - can be done within a reasonable time (no maximum)

Answer 249

The federal district court has entered an order. The losing party wants to seek review by the United States Court of Appeals for the appropriate circuit.

Answer 250

Starting point: loser has a right to appeal if the order is a “final judgment.” A final judgment is one that determines the merits of the entire case. To determine whether an order is a final judgment, ask “after making this ruling,” does the trial judge have anything left to do on the merits of the case? If the answer is yes, it is not a final judgment, it is an “interlocutory order.”

Answer 251

In the district court within 30 days after the entry of judgment.

Answer 252

If the district court’s order is not a final judgment, it might be appealable based upon one of these doctrines.

Answer 253

Interlocutory orders reviewable as of right: orders granting, modifying, or refusing preliminary or permanent injunctions. This does not include orders granting, modifying, or refusing a temporary restraining order. Remember, a TRO is good for a maximum of 14 days, renewable for up to another 14 days. Suppose the court enters a TRO of 14 days. Then, 10 days later, the court extends the TRO for 30 days. Can the restrained party appeal? - Yes, because we treat it as a preliminary injunction

Answer 254

Allows appeal of nonfinal order if: 1. The district judge certifies that it involves a controlling issue of law; 2. As to which there is substantial ground for difference of opinion; and 3. The court of appeals agrees to hear it.

Answer 255

Appellate court has discretion to hear ruling on an issue if that issue: 1. Is distinct from the merits of the case; 2. Involves an important legal question; and 3. Is essentially unreviewable if parties await a final judgment.

Answer 256

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.

Answer 257

Court of appeals has discretion to review an order granting or denying certification of class action. Must seek review at the court of appeals within 14 days of order. Appeal here does not stay the proceedings at district court unless the court of appeals or district court says so. The court has discretion to grant this appeal.

Answer 258

An original proceeding in the court of appeals to compel the district judge to make or vacate a particular order. Not a substitute for appeal; available only if the district court is violating a clear legal duty.

Answer 259

When the district judge decides questions of law, the court of appeals reviews it de novo.

Answer 260

Because the content of a jury instruction is a question of law.

Answer 261

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. In a jury trial, when the jury decides questions of fact, the court of appeals must affirm unless reasonable people could not have made that finding.

Answer 262

On discretionary matters (e.g., whether to grant a motion to amend pleadings, to allow permissive intervention), the court of appeals must affirm unless the district judge abused her discretion.

Answer 263

No reversal is required if the error is harmless.

Answer 264

Whenever there has been an earlier case, watch for these issues, which concern the preclusive effect of a prior judgment on the merits. The question is whether a judgment already entered (Case 1) precludes litigation of any matters in another case (Case 2). If Case 1 and Case 2 are in different judicial systems (e.g., state and federal), the court in Case 2 applies the preclusion law of the judicial system that decided case 1.

Answer 265

You only get to sue on a claim once. So you only get one case in which to vindicate all rights to relief for that claim.

Answer 266

1. Case 1 and Case 2 were brought by the same claimant against the same defendant (or someone in privity with the defendant in Case 1). 2. Case 1 ended in a valid final judgment ON THE MERITS. General rule: unless the court said otherwise when it entered the judgment, any judgment is “on the merits” unless it was based on jurisdiction, venue, or indispensable parties. - This is true even if there was no adjudication in Case 1. 3. Case 1 and 2 asserted the “same claim.” - Majority View (including federal law): A claim is any right to relief arising from a transaction or occurrence (T/O). - Important minority view: There are separate claims for property damage and for personal injuries because those are different primary rights.

Answer 267

This is narrower than claim preclusion. Here, an issue was litigated in Case 1. The same issue is presented in Case 2. But if issue preclusion applies, we will not allow the issue to be relitigated in Case 2. We deem it established in Case 2.

Answer 268

1. Case 1 ended in a valid, final judgment on the merits; 2. The same issue was actually litigated and determined in Case 1; and 3. The issue was essential to the judgment in Case 1. That means the finding on this issue is the basis for the judgment.

Answer 269

It can only be used against somebody who was a party to Case 1 or in “privity” with a party. “Privity” means that a party to Case 1 represented someone who was not a party to Case 1. Example: Class action, where Rep represents members, who are bound even though they were not parties. This is the rule because of Due Process.

Answer 270

Every court agrees that issue preclusion can be used by someone who was a party to Case 1 (or represented by a party). The big question is whether it can be used by someone who was not a party to Case 1 (or represented by a party). When someone who was not a party to Case 1 tries to use preclusion in Case 2, it is called “nonmutual” issue preclusion. It comes up in two ways: - Nonmutual defensive issue preclusion (the one using it was not a party to Case 1 and is D in Case 2). - Nonmutual offensive issue preclusion (the one using it was not a party to Case 1 and is P in Case 2). Apply four factors: 1. Full and fair opportunity to litigate Case 1 2. Incentive to litigate strongly in Case 1 3. Other party could not have joined easily in Case 1 4. There are no consistent findings on this issue

Civ Pro Flashcards

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