Civil Pro Flashcards
(361 cards)
1
Q
The landowner planned to build a parking lot; she contracted with builder & permit to the city.
A
City denied.
She sued the CITY + Director of Building dpt (individual).
City: unconstitutional taking.
Builder: Intentional Interference of Contract.
2
Q
FRCP 20 (a ) (1) allows person to join as plaintiffs if
A
They assert any right jointly, severally, or alternatively arising from the same transaction or occurrence.
3
Q
If the case presents
A
any (share the same) question of law or fact common to all defendants.
4
Q
Assume the director asserts the counterclaim for defamation against the landowner.
A
Allowed.
5
Q
Compulsory counterclaim
A
arises from the same transaction or occurrence as the plaintiff’s claim.
6
Q
Permissive counterclaim
A
does not arise from the same transaction or occurrence as the plaintiff’s claim.
- May be brought as a counterclaim or as an independent claim in another case.
7
Q
Compulsory Counterclaim
A
may not be brought in another case if not raised in the original case.
8
Q
Here, defamation claim arose from the same events as the landowner’s claim
A
Director must plead the defamation claim as a compulsory counterclaim or risk losing it.
9
Q
The landowner sued the city alone for taking + plaintiff 2: the builder wants to intervene.
A
Intervention:
- matter of right
- matter of permissive.
10
Q
Right to intervene
A
The party claims an interest in the underlying property or transaction.
+ Resolving the case without the intervenor might impair that party’s ability to protect its own interests.
11
Q
No right to intervene
A
An existing party adequately represents the intervenor’s interests.
12
Q
Landowner cannot adequately represent the builder’s interest
A
The builder has no a right to intervene. It is not clear without intervention, the builder has impaired ability to protect his interest.
13
Q
Nonparty: the builder wouldn’t have been bound by the result of the landowner’s case.
A
A court may allow permissive intervention if the intervenor’s claim or defense shares a common question of law or fact with the existing case.
14
Q
Intelligent Cats Love Fish,
ICLF.
A
Intervention. Common, Law, Fact.
15
Q
Impleader
A
A defendant may bring a 3rd party into a lawsuit for indemnity or contribution in case the defendant is found liable to the plaintiff.
16
Q
Assume that the city asks the insurance to defend against the landowners claim,
A
The insurance says, “sorry.”
17
Q
The city could have impleaded the insurer
A
As a 3rd party defendant to indemnify the city in case the city is liable.
18
Q
Impleader
A
- may be used only for indemnity or contribution
- may not be used to shift primary liability to a 3rd party.
19
Q
The city couldn’t implead the county to try to establish their direct liability
A
Derivative liability만 가능.
20
Q
FRCP 19
A
A person whose joinder won’t defeat jurisdiction is required to be joined if:
21
Q
JOINER: The court can’t provide a complete relief without her OR
A
JOINDER: She claims an interest that might be compromised without her participation.
Failure to join can be a ground for dismissal.
22
Q
Here, the builder’s absence would not have impaired the builder’s own interests.
+ nor, the builder’s absence would not have prevented the landowner from obtaining full relief.
A
Therefore, the builder wasn’t a required party.
23
Q
If a required party can’t be joined:
A
Should the court dismiss the case or allow it to be proceed?
24
Q
Compulsory joinder:
A
1- Is there potential prejudice to any party?
2- Would a judgment be adequate without the missing party?
3- Whether the plaintiff would have an adequate remedy if the court dismissed the case?
25
Class action
a case in which one or more representatives litigate on behalf of a group of plaintiffs.
26
FRCP 23 (a) to allow class action,
the Court must certify cases or a class action based on the following factors.: 1. Numerous, 2. Plaintiff's claim must present common questions of law or fact. 3. Representitives' claims must be typical of class claims, 4. The representative must be capable of fairly and adequately representing the class.
27
The case must be one of the several types of suitable for class treatment under R 23 (b).
-Common issues of law or fact predominate over individual issues.
- Class resolution is superior to individual cases.
28
Diversity based class actions
The federal courts have jurisdiction over most class actions with at least 100 class members if:
- the sum of the member's claim exceeds $5 million &
- there is minimal diversity (one class member has diverse citizenship with the one defendant).
- Exception: PJ if at least 2/3 of the class members, plus at least one defendant reside in the state where the case was filed.
29
Scheduling order
(Goat: Mandatoryinitial scheduling conferences)
Issued by court as soon as practicable after either
30
Receiving the parties' discovery planning report
or holding a scheduling conference with the parties' lawyers.
31
Scheduling order must be issued no later than;
60 days after any defendant has appeared or 90 days after any defendant has been served.
32
The scheduling order must limit the time to:
-join other parties;
-amend the pleadings,
-finish discovery
-file motions.
33
Scheduling order may
address anything else for efficient case management; such as
- privilege issues;
-pretrial conference dates
-a trial date.
34
9 months later; both says, "we need more time for discovery."
The parties cannot both agree to extend the deadline. NO.
It is scheduling order.
35
Schedule may be modified only for
Good cause and with the court's consent.
Both has to ask the judge for modification.
36
Pretrial conference (Goat: Initial Pretrial conferences 1) can address:
discovery, settlement, evidentiary stipulations,
37
Pretrial conference (Goat: Initial Pretrial conferences 1) can address:
Parties discuss disclosure and settlement 21 days prior to the scheduling conference in court.
38
Order issued by the court after any pretrial conferences; summarizing outcomes;
governs the case from then on unless the court modifies it.
39
Court
may require parties to attend, or to be reasonably available, to discuss settlement. (Settlement Conferences: Goat완전 다른 것 . Ct encourages)
40
Court may impose sanctions against the party or attorney who
-Doesn't appear when required;
-Is unprepared for a conference;
-Fails to participate in good faith.
41
FRCP 16 (f)
The court may sanction any party or attorney who disobeys a scheduling order or other pretrial order.
42
Final pretrial conference
(Goat: Final Pretrial Order)
must be held as close to trial date as is reasonable;
at least one lawyer for each party; plus any unrepresented party; must attend.
If issued, it may be modified only to prevent manifest injustice.
43
Rule 11
a lawyer or unrepresented party must sign any motions, or pleadings.
44
Anyone who signs, files, submits, or advocates
certifies that based on reasonable inquiry;
45
The paper isn't presented for an improper purpose;
the paper's contents have a legal or evidentiary basis or are likely to after reasonable discovery.
46
FRCP 11 Reasonable inquiry required is measured objectively
Subjective good faith is no excuse for failing to make reasonable inquiry.
47
Lawyer may rely on facially valid document
unless unreasonable, or appropriate reasonable investigation?
48
Complaint
The competitor filed to sabotage the battery manufacturing facility.
49
2. Assume, the manu knew this allegation was false. It was just to intimidate the competitor. The manu's lawyer was a part of the scheme.
By signing the complaint, the lawyer certified that she made a reasonable inquiry that the complaint had no improper purpose. + 2. By signing, the lawyer had an evidentiary support for their sabotage. --> ALL FALSE.
50
Both purpose and content of sabotage allegation
violated R 11.
51
FRCP 11
The court can raise for their own; or the party can move for sanctions.
52
Safe Harbor Provision
Before filing motion, aggrieved party must give 21days to correct violation.
53
Safe harbor provision
If the opponent makes correction, the aggrieved party may not file the motion.
A court may sanction lawyers or parties who violate R 11.
A lawyer and their lawfirms are jointly responsible; absent exceptional circumstances.
54
Sanctions
limited to whatever is necessary to deter future violations by the offenders and by others.
55
Sanctions 11
1. Monetary penalties;
2. Limitations on trial evidence,
3. Dismissal.
4. Remedial civil pro class.
56
Discovery plan (26 f)
all parties have to have to discuss the claim, settlement, and anticipated discovery issue.
57
The parties then must submit the discovery plan to the court
the subjects and timing of the discovery.
58
FRCP 26 a. requires
make standard initial disclosures either or within 14 days after initial planning conference and without awaiting request from another party;
- Witness, documents, and relevant insurance policies.
59
Discovery
1. Neither party may request from the other before initial planning conference.
2. May serve requests for documents once 21 days have elapsed since party was served.
60
After R 26 f conference:
each party may deploy
1. Interrogatories,
2. Depositions,
3. Requests for documents,
4. Requests for admissions from other parties.
5. Subpoena the 3rd parties.
6. Each party required to disclose expert witnesses.
61
Rule 33 Interrogatories
Written questions from one party that another party must answer under oath within 30 days. 25. Unless parties agree or court orders.
- May ask about facts and about a party's opinions or contentions.
62
Scope of discovery
Assume "Can he produce copies of his tax returns for the past 5 years?"
63
A party may obtain about any nonprivileged matter that's
1. Relevant to any party's claim or defense, OR
2. Proportional to the needs of the case.
64
Relevant information
discoverable even if it's not admissible at trial.
65
Proportionality
the discovery can't be excessive or overly burdensome.
66
Work product doctrine
protects trial preparation materials from discovery.
67
FRCP 26 (b) (3)
A party may not discover any documents prepared in anticipation of litigation or for trial by or for another party or its representatives.
68
Work product: each party should do its own trial preparation.
not piggybag another party's work.
69
NOT Protected work product
engineer prepared report in normal course of quality control process, not in anticipation of litigation on for trial. --> discoverable.
70
Protected work product
Engineer instructed to prepare report because manufacturer learned about accident and expected the lawsuit.
Report is non discoverable.
71
Exception of work product (Hicksman)
1. It has substantial need for the information.
2. It can't obtain equivalent information without undue hardship.
72
Expert witness discovery
Expert might testify:
1. Party must disclose expert's identity and produce report detailing background and opinions.
2. Other parties may take expert's deposition.
73
Expert as nontestifying consultant.
1. No such report is required.
2. Other parties may not discover facts known to or opinions held by expert.
74
As a limited exception,
a party may obtain such discovery;
1. If it is impracticable for the party to obtain facts or opinions, on the same subject some other way.
75
FRCP 26 c. Protective orders
the court may order protective orders to
protect a party from discovery that's unduly burdensome, unreasonably cumulative, excessively expensive, harassing or embarrassing.
76
Jury trial (7th)
if the amount in controversy exceeds $20.
It may also confirmed by the statute.
77
FRCP 38
Expressly preserves both constitutional and statutory jury trial rights in federal cases.
78
Jury trial right
applies to legal issues ($), not equitable issues (injunction)
79
If it is not clear whether it is legal or equitable,
Cts consider the remedy sought;
look for analogous causes of action in common law.
80
Combination legal and equitable issues
1. The court first tries the legal issues to the jury.
2. The judge ALONE tries the equitable issues (bound by the jury's conclusion and findings of fact).
81
Parks act: Student "I demand $500 K in damages"
right to jury trial.
82
Student, "Plus injunction forbidding similar construction methods."
No jury trial right.
83
Judge here, Parks Act:
1. First, Try the damages issue to the jury.
2. Second, rely on the jury's factual findings to try the equitable issue without a jury.
84
FRCP 38 (b)
A party may demand a jury trial by filing and serving a written jury demand within 14 days after service of the last pleading directed to the issue.
85
Last means,
final allowable PLEADING (not motion).
86
Demand:
in pleading or separate document.
The court must honor it.
87
If the party fails to demand a jury trial
The court may try the case without a jury.
88
If the party later moves for jury trial;
The court may order a jury trial on any issue for which a proper demand could have been made.
89
If the defendant did not file an answer; there was no final pleading regarding the claim
The student clock has not started to run on 14 day deadline for jury demand. So the student demand was timely.
90
FRCP 48
requires jury to begin with at least 6 and no more than 12 jurors.
Judge may excuse jurors for cause.
The verdict must be unanimous and must be rendered by at least 6 members.
91
The verdict from 5 jurors
improper.
92
Voir dire
questioning potential jurors to determine whether each juror can be impartial
93
Peremptory challenges
-3 for each party.
- used to strike potential juror without explanation
- can't be sued to discriminate against potential jurors based on race or sex.
94
Challenge for cause
judge must decide whether the challenged juror can be impartial.
- Potential juror owns stock in a corp party
- juror or the juror's spouse previously worked for a party XXXXXXX
95
FRCP 51 (c)
requires party to object to jury instruction or refusal to instruct when party first learns of court's proposed instruction or refusal.
- any ... untimely objections are waived.
96
The party can appeal the jury instruction without first raising it at trial
if the court committed a plain error that affects substantial rights.
97
Ordinarily
failure to object jury instruction would waive any further challenge to the instruction.
98
Here, jury instruction to punitive damage:
plain error. It directly contradicted applicable statute and affected substantial rights.
Improperly awarded the large $$$ damages that student was not entitled.
The contractor is entitled to challenge the jury instruction on appeal. despite failure to object.
99
The student says, "I seek to introduce some of the contractor's internal emails into evidence."
The court says, "no."
It is not final judgment. The litigation did not end. The student could not appeal.
100
Exceptions: Interlocutory appeals.
28 USC 1292
Orders granting or denying injunctions are immediately appealable.
101
Final judgment
ends the litigation on the merits and leaves nothing for the trial court to do but to execute the judgment.
102
28 USC 1292 (b) Assume, the company moved for summary judgment:
The company argues the statute Park Act allows suits against park officials but not contractors. The court denies the motion.
103
Parks Act: ambiguous as to whether contractors could be sued.
Other federal courts: split on this question.
104
28 USC 1292 B
Company could have asked the trial court to certify this queseiton for an immediate interlocutory appeal.
105
The trial court must certify in writing that:
1. The order involves a controlling question of law.
(whether contractor can be sued or not at all).
2. There is substantial ground for difference of opinion,
(other courts have reached the different conclusions).
3. An immediate appeal may materially advance the end of the litigation.
(if the appellate court rules that the defendant was NOT a proper defendant.)
106
If the trial court certifies the question then,
the Contractor can immediately appeal.
+
The appellate court has discretion whether to accept or reject the appeal.
107
Certification process (R 1292 b)
reserved for truly unsettled legal issues.
-it doesn't apply to other issues.
-it doesn't apply to questions of fact.
108
FRCP 54 (b)
partial final judgment applies if a court
1. Resolves fewer than all claims in multi claim case.
2. If the court resolves claims as to fewer than all parties.
109
Partial final judgment
Ct can dismiss the federal law claim without ruling on a state law claim.
110
Partial final judgment (resolutions)
don't end the litigation.
If no just reason to delay, Ct may enter a partial final judgment only as to the resolve claims or the relevant parties.
111
Entering partial final judgment
factors to consider:
- 1. the policy disfavoring multiple appeals.
-2. any prejudice resulting from a delayed appeal.
3- the relationship between the resolved claims and those remaining.
112
Courts are most likely to enter Partial final judgment
if the claims underlying the judgment are legally or factually distinct from the remaining claims.
113
Case tried without a jury
The judge must make separate findings of fact and conclusions of law..... In writing or orally.
The judge may ask the aprties to submit the proposed findings and conclusions.
114
Preserving objections for appeal
A party typically must make those objections on the record in the trial court.
- A party may challenge the sufficiency of the evidence to support a judge's factual findings even if the party did not object to them.
115
Setting aside the trial judge's findings:
An appellate court may not set aside the trial judge's findings unless they were clearly erroneous.
- The appellate court has a definite and firm conviction that the trial judge made a mistake.
-Must due regard to trial judge's opportunity to evaluate witness credibility.
116
SoL Appellate Review: Issues of law
-De novo:
An appellate court may assess those issues for itself without deference to the trial court.
117
Issues of fact decided by a judge
reviewed under the clearly erroneous standard.
118
Issues of fact decided by jury
reviewed under a substantial evidence standard.
- the Appellate court will overturn the jury's findings only if no reasonable jury could have found as the jury did.
119
Matters within the trial judge's discretion
Evidentiary ruling:
- overturned only for abuse of discretion
120
Claim Preclusion
prohibits relitigating claims that were decided or could have been decided in a prior case.
121
Claim precluded if:
1. The prior case ended in final, valid judgment on the merits.
2. The parties in the prior case and the current case are identical or in privity with the another.
3. The same cause of action.
122
Claim preclusion: the same cause of action:
1 The claims arise from the same transaction or occurrence;
2 The claims were raised or could have been raised in a single case.
123
Claim splitting
occurs if a plaintiff divides related claims among multiple lawsuits.
124
Claim preclusion
Suing the CEO the same as suing the company because of privity. Still, the 2nd case will be precluded.
125
Issue preclusion prohibits relitigating the issue if:
1. The issue is identical to an issue in the prior case.
2. The prior case ended in a valid final judgment.
3. The issue was litigated and necessarily decided in the prior case.
4. The current opposing party had a full and fair opportunity to litigate the issue in the prior case.
126
Full and fair opportunity to litigate
Issue preclusion can't be used against someone who wasn't a party to the prior, preclusive case.
127
Here, the second litigation has no company as a party:
It would have violated due process to bind the company by the result in the defamation case.
Issue preclusion would not apply.
Issue preclusion can't be used against someone who wasn't a party to the allegedly preclusive case.
128
Mutuality
The parties in both the case at hand and the prior, preclusive case must be identical.
129
Most courts require mutuality (the same parties) for issue preclusion.
Today, FED cts and state courts no longer require mutuality.
130
28 USC 1738
Federal Courts must give full faith and credit to state court judgments.
- Federal court must give a state court judgment the same preclusive effect that the issuing state would give that judgment.
-Both to claim preclusion and issue preclusion.
131
What matters: the effect in the issuing state:
not the effect a similar judgment would have if issued by a federal court or by a different state's court.
132
The dismissal was issued by the State A court:
The dismissal had preclusive effect in State A.
The federal court had to get the judgment the same effect.
Salesman claim: precluded.
133
FRCP 41: The first dismissal in Fed Ct:
The 2nd dismissal in Fed Ct:
Operated as an adjudication on the merits.
The 3rd in State Court XXXXXXXXXXXXXXXXXXX
(Semtek Intl Inc.)
134
The preclusive effect of a dismissal in a federal diversity case is governed by federal common law
not by state law.
The State B court should have looked the federal common law to decide whether the federal dismissal preclude the State B case.
135
Federal Subject Matter Jurisdiction
1. Federal Question
2. Diversity.
136
EG Federal Question:
"I am suing the trucking company under the Chemical Safety Act."
137
28 USC 1331
Federal Courts have jurisdiction over all cases arising under the Constitution, laws, or treaties of the U.S.
Federal question generally must appear on the face of the plaintiff's complaint.
-Well pleaded complaint rule.
138
When the customer sues company on a state law negligence claim and
- Company defendant can't be negligent because complied with the federal act:
This won't trigger federal question jurisdiction.
139
Diversity jurisdiction
"I am seeking $100,000 on a state law tort claim."
- Driver is in NY
- Trucking company in Delaware.
140
Diversity jurisdiction
$75,000 exceeds,
complete diversity of citizenship between plaintiffs and defendants side of case.
141
Citizenship: individual
citizen of state where domiciled, principal home with intent to remain indefinitely.
142
Corporation
Citizen both of the state where it's incorporated AND the state where it has its principal place of business.
143
If the plaintiff, Florida citizen joins,
No diversity. because Trucking company is in Florida.
144
Diversity jurisdiction
extends to suits between a foreign citizen and a citizen of the US State.
145
Aussie driver against the Delaware trucking company
assuming a sufficient amount in controversy, within court's diversity jurisdiction.
146
Diversity extends when 1. Aussie, 2. American are plaintiffs.
But Diversity doesn't extends when 1. Aussie, 2. Kiwie.
147
Claim +++ ok.
1. Personal injury under State Law. ($50,000).
2. Breach of Contract under State Law ($40,000).
148
A single plaintiff can add, or aggregate claims against single defendant
even if the claims are not related.
149
Defendant 1= $35,000
Defendant 2 = $40,000
--> Cannot aggregate
Unless jointly liable.
150
Multiple plaintiffs (NY1, FL2) cannot aggregate their claims
Unless joint and common interest in relief.
151
28 USC 1367 Supplemental jurisdiction
is a form of federal subject matter jurisdiction.
152
Supplemental jurisdiction
court may exercise over claims that form part of the same case or controversy as claims over which court has original jurisdiction.
- Driver (plaintiff = FL); Company (defendant = FL) State Law Claim= Negligence라도 괜찮음.
153
One claim + another claim
Common Nucleus of operative fact
154
Driver's negligence claim (State claim)
+ Federal Statutory claim (Federal claim)
Car accident.
Common Nucleus of operative fact.
155
Impleader
doesn't trigger diversity citizenship.
156
Impleader = Delaware,
Defendant = Delaware.
OK.
157
Defendant says, "Impleader, faulty maintenance, indemnify me."
Impleader says, "You didn't pay the last round of maintenance on the truck. We counterclaim against you for $2,000."
158
Indemnity claim did not trigger diversity jurisdiction because both Defendant and Impleaders are FL.
But the claim shared the common nucleus of operative fact. with the Driver's federal question claim because both claims involve car accident.
- Supplemental jurisdiction.
- Contractor's counterclaim also came from the common nucleus of operative fact.
159
Ct can decline supplemental jurisdiction
1. If the supplemental state law issue is a novel one.
2. If the supplemental claims substantially predominate over non supplemental claims.
160
EG, Federal claim of the driver was capped at $20,000.
Sought $500,000 on the state law claim. To oppose supplemental jurisdiction,
The company can argue the state la claim predominates because it's for a larger amount.
161
If the claims shared a common nucleus of operative fact
+ declining them together would be efficient;
The court would not decline supplemental jurisdiction.
162
What if the court all dismisses within original jurisdiction, leaving only supplemental claims pending?
Dismissal doesn't destroy the court's supplemental jurisdiction.
The court has discretion either to dismiss, or obtain the supplemental claims.
163
Removal
procedure by which a defendant can sometimes move a state court case to federal district court.
164
Defendant removal
1. Identify the correct federal district court.
- The court for the district and division where the state court case was pending.
165
To be removable, (Defendant)
1. case must fall within the original jurisdiction of the federal courts.
2. requires a separate source of federal jurisdiction.
166
Removal
1-File a signed notice of removal in federal district court.
2-Notice has to include basis of removal and all papers previously served on company.
3-Give written notice of removal to all adverse parties and file copy of notice with state court.
Then, the state court has nothing to do with it unless remand back to the state court.
167
Timing
Defendant must remove within the shorter of 30 days after it receives a copy of the complaint.
- 30 days after receipt of summons if complaint was already filed.
168
If defendants are served at different times,
later served defendant may remove with earlier served defendant's consent, even if earlier defendant missed removal deadline.
169
Limits on removal
Defendant sued in home state may not remove based on solely on diversity.
Home state defendant may remove if there is some other basis for jurisdiction (Federal Questions Jurisdiction등은 괜찮음).
170
Pleading 7
1. Complaint,
2. Answer,
3. Answer to a counterclaim,
4. Answer to a crossclaim,
5. Third party complaint,
6. Answer to a 3rd party complaint,
7.Replay to an answer if court orders one.
171
FRCP 8 State of claim
Only a short and plain statement of the claim is required.
The complaint may not rely on mere conclusion; but must state enough facts to show a plausible entitlement to relief. Extensive details no need.
172
EG
Stated a plausible basis for relief under products liability law: OK
173
Answer
must admit or deny each of the allegations and raise any affirmative defenses.
174
Affirmative defenses
Usually waived if not raised in the answer.
175
Answering a counterclaim
allowed,
a party may not file a reply to an answer unless the court orders it.
176
Alternative claim for negligence FRCP 15 Amending
A party is allowed to amend a pleading once as a matter of course within certain deadlines.
177
AMENDMENT DEADLINES
must occur within 21 days after serving the pleading.
- if a responsive pleading is required, then the amendment deadline is
- 21 days after the responsive pleading is served or
- 21 days after the service of certain Rule 12 motions, whichever comes first.
178
이미 한 번 Amend를 했다면, Amending after these deadlines/ after amending once,
A party may amend only with the court's permission or the opposing party's consent.
FRCP 15 leave to amend should be freely given when justice requires.
179
EG The manu found the HO faked the accident; + it was too late to amend unilaterally then,
the manu moved to answer and add an affirmative defense of fraud. The court grants motion yes.
180
Fraud defense
-is based on facts manu learned after filing answer. -Exhibits no bad faith or delay,
Is based on the HO's own conduct.
--> Presenting defense Will ensure that the merits of the case are fully tired.
--> Amendment wouldn't prejudice the HO.
181
Amendment can relate back to the date of the original pleading in 3 situations.
1. The law provides the SoL allows relation back.
2. The amendment adds a claim or defense against an existing party that arose from the conduct, transaction, or occurrence underlying the original pleading.
3. The amendment changes the party or the naming of a party against whom a claim is asserted.
182
Amendment changes against whom claim is asserted:
1. Must raise claim or defense based on same conduct, transaction, or occurrence as original pleading.
2.within time allowed for service original complaint, new party received sufficient notice of the case that it won't be prejudiced.
3. Within the same time period, new party knew or should ahve known it wouldn've been named in original compalint but for mistake about proper party's identity.
183
Ct would not allow
futile, meaningless
184
Temporary Restraining Order TRO
preliminary injunction to stop the explosions pending trial.
185
FRCP 65
A court may issue a TRO with or without notice to the adverse party.
186
TRO
may issue without notice only if
1. Facts show moving party will suffer immediate and irreparable harm.
2-Moving party's lawyer certifies in writing efforts made to provide notice.
187
Decising any motion for TRO, a court considers
1. possibility of immediate, irreparable harm,
2. Whether potential harm to moving party is outweighed by harm TRO would inflict on the adverse party,(human safety> $$ that company will lose)
3. Moving party's likelihood of succeeding on the merits. (nuisance)
4. Public interest.
188
Legal remedy
If adequate, a TRO is inappropriate.
189
Inadequate if harm can't be fully repaired by money, or relying on damages requires repeated lawsuits.
190
TRO
14 days. May be extended for the same length of time before it expires.
--> preliminary injunction.
191
Preliminary injunction
-court may issue only with notice to enjoined party.
-lasts for time specified by court or until final judgment or dismissal.
192
TRO & Preliminary injunction
court must require moving party to post a bond to compensate adverse party if wrongfully restrained.
193
28 USC 1292 (a ) (1)
A party may immediately appeal any order granting, refusing, modifying, or dissolving an injunction.
194
FRCP 56 Summary judgment
A party may move for summary judgment at any time up to 30 days after discovery ends.
195
The court must grant
after construing facts and favoring nonmoving party
the motion
if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
196
Party seeking summary judgment
may not rely on the pleadings, but must present evidence obtained through discovery or depositions, documents, witness affidavits, etc.
197
Summary judgment
1. Moving party can affirmatively prove the elements of its case.
198
Let's assume that HO sued for intentional infliction of emotional distress:
She intends to proof that it cause her sever emotional harm.
- HO obtained emails.
- SJ.
199
Celotex Methods
The moving party may show that the nonmoving party lacks admissible evidence to prove an essential element of its case.
- The company can move for SJ because Homeowner has a burden of proof but she has no evidence.
200
HO says, "I have not served any discovery requests yet."
In response to SJ motion,
The nonmoving party may file an affidavit or declaration to show that it needs additional discovery to obtain facts to oppose the motion.
- Non moving party specifies what discovery is needed and how it relates to basis for motion.
201
Court then,
either deny the motion or defer ruling until discovery is complete.
Here, the HW has not taken any discovery yet, and it has just begun.
If she files proper affidavit or declation, court should deny or defer
the company's motion.
202
Parks Act: The company says, "I am filing a preanswer motion to dismiss for improper venue."
Motion denied.
The company never answered the complaint. What does the student do to obtain default judgment?
203
Obtain an entry of default under Rule 55 (a).
The student must show the clerk of the court that other party failed to plead or otherwise defend the case.
If shown, the student can obtain default judgment.
204
The contractor never answered the complaint;
The clerk could enter the contractor's default.
205
FRCP 55 (b). 2 methods.
The defendant was defaulted for failing to appear
+ the defendant isn't a minor or an incompetent person;
+ the plaintiff seeks an amount that can be precisely calculated;
==> The plaintiff asks for a judgment and presents an affidavit showing the amount due
==> the Clerk of the court enters a default judgmet for the amount shown plus costs.
206
Methods 2
The plaintiff moves for a default judgment.
==> The judge holds a hearing and accepts evidence regarding damages.
==> The judge enters a judgment not exceeding the amount demanded in the complaint.
207
The defaulting party showing up deserves
7 day notice at the hearing.
208
Contractor:
"I can't believe I forgot about this!"
209
He could move to set aside the default.
The court: good cause,
The court has broad discretion as to what constitutes good cause.
It is difficult to predict whether the court would excuse forgetfulness and grant motion.
210
A court can impose a default judgment
as a sanction for a party's misbehavior.
211
If the contractor defended the case, but
repeatedly refused to obey discovery orders;
--> The court could impose a default judgment.
212
FRCP 41 Dismissal
Voluntary
- with the plaintiff's consent.
213
Voluntary dismissal without court order:
1. If the contractor has NOT answered or moved for summary judgment: student can file a notice of dismissal.
2. If the student can file a stipulation of dismissal signed by both herself and contractor; then ok.
214
OTHERWISE the student
can file a motion to dismiss and request the court order.
215
Voluntary dismissal
WIthout prejudice
- unless notice, stipulation, or court order,
Will not prevent the plaintiff from refiling the case.
216
FRCP 41 a 1 b:
If the plaintiff previously dismissed any federal or state case that included the same claim, a notice of dismissal operates as an adjudication on the merits, which bars refiling.
--> Adjudication on the merits triggers claim preclusion.
217
2 dismissal rule applies only if the 2nd dismissal resulted from
a unilateral notice of dismissal.
Not the other forms.
218
Here, the student voluntarily dismissed the case and brought the same claim in the federal court;= and filed a notice of dismissal
so it is adjudication on the merits. She cannot file the 3rd case over the same claim.
219
Involuntary dismissal (R 41)
Without the plaintiff's consent.
220
After filing, the student didn't do anything.
The contractor moved to dismiss.
221
FRCP 41 b: 3 grounds for involuntary dismissal.
1. Failure to prosecute;
2. Failure to comply with the rules of procedure;
3. Failure to obey a court order.
The student here, failed to prosecute the case. that is, she failed to proceed after filing.
222
Most involuntary dismissals
adjudications on the merits unless the court says otherwise.I
223
Involuntary dismissals based on
lack of jurisdiction, improper venue, failure to join a required party:
--> dismissals without prejudice.
224
FRCP 50 a.
Party may move for JMOL at any time before judge submits case to jury.
Judge may grant the motion only if reasonable jury would have no legally sufficient evidentiary basis to find for nonmoving party.
225
If JMOL is denied by the court; 3 options.
1. No later than 28 days after entry of judgment, the mechanic may bring a renewed motion for JMOL under Rule 50 b.
226
JNOL
asks the judge to
1. Set aside the jury verdict.
2. Enter a contrary judgment for the moving party.
227
RENEWED should be:
-Party may bring only if made initial motion for JMOL before case went to jury.
- Court may grant only on grounds raised in original motion.
228
If fails to JNOL
may not challenge sufficiency of evidence on appeal.
229
The court must deny the renewed motion and let the jury's verdict stand if there is
substantial evidence to support verdict.
230
Substantial evidence
Reasonable jury would find as it did.
231
The court must assume
jury resolved all disputed issued in favor of nonmoving party.
232
Judge
as on the initial motion, may not independently weigh the evidence.
233
Motion for new trial (R 59)
may be filed within 28 days after entry of judgment.
234
Rule 60
The mechanic could use this information "I overheard the polit talking about the case." one month after. for relief from judgment.
235
A court may grant relief from judgment for:
1. Mistake,
2. Newly discovered evidence that couldn't reasonably have been discovered before trial,
3. Any opposing party's fraud,
4. Any other reason that justifies relief.
236
R 60 b motion
mistake, fraud, or newly discovered evidence:
must be within 1 year.
Other motions must be brought within a reasonable time.
237
Hit and run accident: state negligence law
state law or federal law applies??
238
Erie:
Diversity cases, federal court apply
State substantive law and federal procedural law.
239
Law of Negligence
Substantive because it defines the parties rights and obligations.
The federal court will apply state negligence law.
240
State law conflicts Federal Procedure law
If a federal procedural rule directly addresses an issue (speak on the issue)
--> The federal rule pplies over any conflicting state law.
241
Fed rule doesn't apply if
against US constitution or exceeded the Supreme Cts authority to promultage the federal rules of procedures
242
What if there is no FRCP on point?
Fed case law: Each side should pay its own attorney's fees.
State statute court shoudl award the attorney's fees to the winning party.
243
Broader Erie test
1. Which choice will best serve the twin aims of Erie.
2. Whether the choice of federal or state law decides the outcome of the case;
3. Whether the state law expresses a strong state interest.
4. Whether a countervailing federal policy should overcome state law.
244
Twin aims of Erie
1. Discourage forum shopping.
2. Prevent unfairness.
245
A party should receive the same treatment
1- Fed court,
2- State court.
If 1, and 2., are different; it has high risk of forum shopping and a corresponding risk of unfairness to one party.
246
Availability of fee shifting could contribute to forum shopping.
- Because if fees are available in state court, but not in fed court; then, a party chooses a forum based on that factor.
247
2. Unfairness: If one party or the other had fee shifting remedy available, because of where the case was litigated.
Applying in federal court would avoid this problem by creating uniform incentives and remedies.
State law fee shifting is substantive.
248
Outcome determinative test
Would the choice between state and federal law determine the case's outcome? YES, Fee shifting law decides the outcome.
State law is substantive because it yields the significantly greater remedy.
249
State interest test
is the state law bound up with state based rights obligations, or policies?
If so, it is substantive.
Strong state policy and interests.
250
Countervailing federal policy test
Federal law will be applied if necessary to vindicate (정당성을 입증하다) important federal practices or policies.
State law is substantive.
251
Federal Court in diversity case must apply the conflicts of law rules of
the state where the court is located; sits.
252
Privileges FRE 501
If state law governs a claim or defense, then, the state's privilege law applies to any relevant privilege determinations.
253
Motion for a more definite statement
The pleading is so vague that the moving party can't reasonably respond.
254
Motion to strike (before answering)
The court to strike from the opponent's pleading any immaterial, impertinent, or scandalous matter.
255
Before the newspaper filed an answer, it moved for judgment on the pleadings.
Motion for judgment on the pleadings: enter jugment for the moving party based soley on the pleadings, without considering any evidence.
256
Motion for judgment on the pleadings
Only after the pleadings are closed and early enough so as not to delay the trial.
257
Motion to dismiss 7
1. Lack of SMJ
2. Lack of PJ,
3. Improper Venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim on which relief can be granted,
7. Failure to join a required party.
258
Timing of Motion to dismiss 12 b
Before the defendant answers the complaint;
canbe raised as defenses in the answer.
The court should dismiss the complaint because it fails to state any legally recognized claim and provides no basis for relief.
259
Motion Consolidated 가능함.
1. Motion to strike,
2. Motion for a more definite statement,
3. 12 b 2 motion
4. 12 b 6 motion.
260
Amendment as a matter of course
Amendment made within the time allowed to amend a pleading without the opposing party's consent or the court's permission.
261
Intervention as of right 3 elements
1 The absent party claims an interest relating to the property or transaction that is the subject of the action.
2 The absent party is so situated that disposition of the action may as a practical matter impari or impede the absent party's ability to protect its interest.
3. Existing parties do not adequately represent the movant's interest.
262
What happens if an existing party and an absent party want the same result for the same reason?
Permissive intervention
263
Permissive intervention will be allowed
The court may permit intervention when the nonparty's claim or defense shares a common question of fact or law with the main action.
264
Permissive intervention is allowed
the new motherfucker is already trying to do what the existing motherfucker wants to do. for the same damn reason.
265
If you both want the same thing for a different reason
Intervention as of right should be argued.
266
If you both want the same thing for the same reason
permissive intervention should be argued.
267
Class action
1. Numerosity
2. Typicality
3. Commonality
4. Adequate
268
Injunction class actions will not be certified
if everyone is also seeking individualized money damages.
269
Daddy judge will not certify a (B) (2) injunction
class action if everyone is also seeking $20,000 in addition to the injunction.
270
Common question and damages
(b) (3) lawsuit.
271
(B) (3) class action is allowed
when a bunch of people are seeking money and all their suits revolve around a common claim; prejudict to other parties or a limited fund, with a common evil to be stopped through an injunction (type 2) it is concerned with a common question of law or fact predominating adn individual money claim.
272
Common Question class actions
require that the class representatives notify all members, telling them they can 1) opt out, 2) they will be bound if they don't opt out and 3) they can enter a separate appearance through counsel.
273
You can appeal decisions by the court that
deny class certification.
You just have to seek review within 14 days of the order denying the class.
274
Claim preclusion
race judicata
- 1. The same parties.
- 2. The same cause of action,
- 3. Privity.
- 4. Final and valid judgment on the merits.
275
On the merits
Summary judgment,
Failure to state a claim.
276
Not on the merits
Lack of Personal Jurisdiction,
- Voluntary dismissal.
277
Claim preclusion precludes
If you had claims which arose out of the same transaction or occurrence, adn if you could have brought them originally in the first lawsuit, it will be barred in the second lawsuit by claim preclusion (like, trucker, & trucking company as defendants).
278
EG. Big company hires an accounting firm to audit them and company doesn't pay,
The accounting firm wins.
& the 2nd lawsuit the company sues the account firm for doing a shits audit.
No. It is barred by claim preclusion for failing the hidden "could ahve been brought," factor.
279
Issue preclusion
all about reducing the scope of the 2nd case.
280
Offensive issue preclusion
different plaintiffs, using the same sward (NEG), for one defendant.
281
Elements of Issue preclusion (Quimbee + Goat mix)
1. The issue is identical,
2. Prior case ended in a valid and final judgment, (Raised in one case & Resolved in one case R&R)
3. The issue was litigated and necessarily decided in the prior case. (Essential" Issue: the court says, "you won on this issue)
4. The current opposing party ahd a full adn fair opportunity to litigate the issue. (The dog had his day)
282
Non-mutual Defensive issue preclusion
OK.
LL sues T1 for payment one minute late.
LL sues T2 for payment one minute late
--> T2 can say, "non mutual defensive, issue preclusion)
Using T1's issue judgment about the insanity of the penalty clause against the same LL. OK.
283
Witness Identity
needs to be disclose eventually, assuming the pedestrian submits the proper discovery request.
Upon to an appropriate interrogatory.
284
Goat) Protective orders (Discovery)
To protect confidential information, embarrassing information, privileged information, or irrelevant personal information.
285
Protective oders
to stop depositions being scheduled at inconvenient times.
286
Protect against
cumulative or repetitive discovery.
287
Protective orders
if good cause is shown and the person asking for it certifies that they tried to resolve the discovery dispute without court intervention.
288
SoR: If you want to appeal a ruling on a protective order
it will be subject to the abuse of discretion standard.
- The courts have full discreation for discovery matters AND
It will only be appealable after there is a final judgment; i.e., when the case is over.
289
4 ways to disclosure -
1. Required Automatic one
2. The Rogs' Interrogatories.
3. Depositions
4. Requests to Produce (RTPs)
290
Almost all discoveries
upon request.
291
If nobody asks for automatic disclosure; then they are
automatic. Parties must disclose them right away (different from Barbri)
292
If you will use certain testimony or documents
you must disclose.
293
If you are doubt as to whether you will use testimony or document
you must include it in the automatic disclosure or you will be barred from using it at trial.
294
Doubt
Automatic Disclosure
295
Initial disclousre rule only requires you to reveal
evidence that supports your case, not evidence that is bad for you.
296
Testifying experts
you must disclose their report and qualifications 90 days before trial.
- Basis of their opinion, data, method,
- Qualifications,
+ - Money $12,000 for doing 4 hours of work,
297
If the expert is merely responding to another exports report (Rebuttal expert)
you only need to disclose their report 30 days before trial instead of 90 days before trial.
298
Nontestifying experts do not need to be disclose to the other side
unless there is a showing of exceptional cir.
299
30 days before trial
you must make pretrial disclosures detailing
- names of witnesses,
- documents and epositions you plain to use at trial +
- The exhibits you expect to offer at trial.
300
The other side must object within
14 days after reciving your pretrial disclosures.
301
26 d 1
Discovery planning conference
302
Depositions
when you ask questions to witness who is under oath.
"Preview" of witness testimony.
Impeachment record.
Evaluate their credibility on stand.
303
Who can lawyers depose?
They can depose parties to the case, nonparties, and testifying experts, (not nontestifying experts).
304
Deposition
cannot do with their own parties.
The other parties.
305
Depositions can be used to
impeach a party at trial and can also be used if a party is unavailable at trial.
306
Depositions are only discovery method
that can be used on nonparties. (you can't serve them with interrogatoreis and request to produce).
-Deposing nonparties you need a subpoena.
307
100 mile bulge rule
Nonparty can only be forced to testify at a deposition/ hearing or trial if it is within 100 miles of where tehy work, live or do business in person.
308
Deposition: The opponent party's lawyer can object.
Objection is noted; then deposition goes on. That is it.
- Purpose: Prevent the use of evidence at trial. BUT
You can instruct a witness not to answer to enforce a privilege or a limitation imposed by the court.
309
You can instruct the deponent
not to answer if you believe deposition is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.
310
Interrogatories
You can't serve interrogatories on nonparties.
- Just Questions sent from one party to be answered by the other Party.
311
Interrogatories (rog) 25
names of witnesses, dates, of relevant events, itemization of damages, and the location of documents.
312
More than 25 rogs:
yes, ok if the court gives you.
The court can also narrow the scope of the rogs.
313
How long do you have to answer?
30 days after being served with it.
314
Rog:
you can ask anything,
The other party can answer as long as it is relevant.
315
FRCP Interrogatory
is not objectionable merely because it asks for an opinion or contention that relates to a fact or the applicatio of law to fact.
316
Why do you think the defendant is liable for your injury?
OK. proper interrogatory.
A party can't just answer with their own knowledge.
They must respond by making a good faith investigation into the collective knowledge of their employees' attorneys, investigators, etc.
317
Rogs can be used for
impeachment of witnesses in trial just like depositions.
318
Requests for production
Parties, and nonparties --> CANBE SUBPOENAed.
SUBPOENA can be objected to for undue burden, lack of relevance or privilege.
319
Each requests for production: Reasonable particularity
RP. Each item to be inspected.
Role play.
RP
320
Reasonable Particularity is NOT
All documents relevant to the plaintiff's claims against the defendant.
(not role play)
321
All documents relevant to the plaintiff's medical treatment from a year before the accident to present time
RP. Reasonable Particularity.
322
Requests for admission
admitted unless you answer within 30 days.
323
Request for admission answer
Cannot be used against you in a subsequent lawsuit.
324
ESI
1. Parties must take reasonable steps to save electronic discovery once it becomes clear that it will be discoverable in litigation. No deleting.
2. May specify the actual form (e.g., excel) the party must produce in that form.
3 If no request was made and one side produced it with reasonable form; you can ask again.
4. Refuses the discovery request, you may file a motion to compel.
Valid reason not to produce the discovery are: undue burden and excessive costs.
325
Supplement discovery if:
1. Info you gave becomes incomplete due to new information or
2. Info you gave is discovered to be incorrect.
326
If you fail to provide information or identify a witness
you will not be allowed to use that information or witness at a motion, heaing, or trial unless your failure was either harmless or substantially justified.
327
If you provide some fake documents and the other party has to spend time and money proving they are fake;
you will be sanctioned and pay the fee's associated with making those proofs.
328
Failure to comply with discovery (제대로 대답을 안 할 경우); Partial
motion to compel.
They can recover the costs and attorney's fees; for brining this motion if they win it.
329
Total failure to compny:
the other side can get immediate sanctions. e.g., dimissing the action, disallowing certain evdiecne, striking certain pleadings, etc. + will recover any costs they incurred when fighting agains your lazy discovery dodging ass.
330
Medical examinations;
parties put their physical or mental condition in controversy.
331
The other side is allowed to request
a court order with good cause to have an independent mental or physical examination done on you.
332
Depose: Corporation
notice필요. 그 다음은 회사에서 알아서 한 명 갖다 준다.
333
Deposition
when you ask Qs to a witness who is under oath; "preview of a witness testimony."
334
Goat) Rule 11 The signature certifies 3 specific things.
1. That the filing is not for an improper purpose.
335
Goat) Rule 11 The signature certifies 3 specific things.
2. No bad faith legal issues.
- The arguments presented all have to be warranted by the existing law or good faith change or extension in the law. not frivolous.
336
Goat) Rule 11 The signature certifies 3 specific things.
The factual contentions all have evidentiary support or likely will after more investigation.
337
Rule 11
To the court. not to the other party.
338
Rule 11 Lawyer : should investigate
Reasonable prefiling inquiry. or
Reasonable Inquiry.
339
R 12
a party makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted form it earlier motion.
340
A party waives any defense liste din R 12 b 2 - 5 by omitting it from a motion in the cir described in R 12 g 2.
Taken together, these rules would normally mean that the woman waived her R 12 b 5 defense of insufficiency of service of process when she failed to include it in her original motion to dismiss.
341
The court can allow motion to dismiss to be amended
before the motion is heard; so long as the adverse party is not prejudiced by the amendment and no delay results in the prosecution and determination of the case.
342
FR 12 g, a preliminary motion may be
amended to include a defense or objection inadvertently omitted by the movant.
343
When you do not object in trial you WAIVE the issue for appeal
Unless you beg to them or your hands and knees and say, "this is plain error that affected my substantial rights." Please appellate court review this for me.
344
Summary Judgment: no Genuine Dispute of Material Facts
GDMF
345
SJ: you must point to specific evidence in the record demonstrating a factual dispute
1. Evidence
2. Depositions
3. Affidavit based on Personal Knowledge
4. Admissions
5. Interrogatoriees.
346
Forum Selection Clause
S. Ct: Enforceable.
347
Pleading standard: A complaint has to state a claim that is
"Plausible on its face."
"Plausible entitlement to relief."
348
Fraud, mistake, or special damages
you need to be way more specific with: facts supporting each element of the claim.
349
Jury demand is often included in a complaint.
Sometimes, they wil have questions which ask you the best say to secure your right to a jury demand. " file and serve a complaint which includes a jury demand."
350
Salmon Are Incredibly Delicious (SAID): Individual : Service
Service Agent Individual Dwelling
With someone of suitable age (14 ok, 4 X) and discretion.
351
Service: Corporation: S.O.
State Law Methods: whether you can serve using the laws of the state where you are in.
Officers (or agent: lawyer): CEO, CFO, or someone who is likely to give it to CEO and put them no notice. Like CFO.
No secretary.
352
If you forgot to deliver in timely service:
Show Good Cause
353
Minimum contacts
related to the claim & fair.
354
Amazon General Jurisdiction
Substantial and Continuous.
355
Planets Vanish Past Pluto
If you don't raise motion for
1. Personal Jurisdiction
2. Improper venue
3. Process is insufficient;
4. Process service is insufficient
--> You waived them. Can't raise later on.
356
SMJ
no waiver. Anytime.
357
Failure to join and failure tos tate a claim
can be raised later on as well. but before are brought before trial begins.
358
Final Judgment Rule
If you have 2 claims; you can appeal a partial judgment on just one claim if:
- Judge says, there is no just reason for delay.
359
The court has to certify that
there is no just reason for delay.
360
The court will allow you to do a piecemeal appeal before FJ; if the claim is
distant and separate.
361
