Civil Procedure ✔️ Flashcards
(145 cards)
1
Q
What are the routes to subject matter jurisdiction in federal court?
A
Federal Question
Diversity jurisdiction
Supplemental jurisdiction
2
Q
Define subject matter jurisdiction.
A
A court’s competence to hear & decide “this type of case” (i.e. cases of general class and subject to which proceedings in question belong).
3
Q
What cases fall under federal district courts’ “Federal question” jurisdiction?
A
District courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S.
4
Q
What do you look to to determine whether a Federal question exists?
A
The face of the well-pleaded complaint.
It must form the plaintiff’s cause of action.
⚠️ Anticipating a federal defense alone is not a federal question. Also not answers or counterclaims.
5
Q
Is there an amount of controversy or diversity requirement for federal question jurisdiction?
A
No.
⚠️ AIC and diversity are for diversity jurisdiction.
6
Q
What are the requirements of diversity jurisdiction?
A
- Complete diversity,
- Amount in controversy over $75,000.
⚠️ A federal question is not required.
7
Q
What is complete diversity?
A
Complete diversity requires that no plaintiff share citizenship with any defendant. (No duplicates on either side of the “v.”)
NB: If any plaintiff is a citizen of the same state or same foreign country as any defendant in the case.
8
Q
How is citizenship determined for diversity? (Individuals? Corporations?)
A
(Individuals) Domicile is the state in which an individual is present and intends to remain (reside for an indefinite period). NB: Can have only one domicile at a time, domicile determined @ time action is commenced.
(Corporations) Citizenship is: state of incorporation AND state where it has its principal place of business (i.e. “nerve center” from which high-level officers direct, control, and coordinate its activities) NB: Is often multiple.
9
Q
How to know the amount-in-controversy has been met?
A
Plaintiff’s good-faith assertion in complaint is sufficient ⚠️ unless there is a legal certainty that plaintiff cannot recover alleged amount.
10
Q
When can you aggregate claims to meet the amount-in-controversy?
A
Aggregation of claims permitted for:
- single P against single D,
- multiple Ps with common/undivided interest (counterclaims generally don’t count)
A permissive counterclaim must meet the amount requirement.
A compulsory counterclaim need not.
11
Q
When can a court exercise supplemental jurisdiction (baseline rule)?
A
Common nucleuse of operative fact: A federal court with jurisdiction may exercise supplemental jurisdiction over additional claims the court wouldn’t independently have SMJ over (usu state law claims against a nondiverse D), as long as they arise out of a “common nucleus of operative fact” such that all claims should be tried in a single proceeding.
This includes additional claims against the same party.
12
Q
What requirements if you permissively join as an additional plaintiff to a diversity action? Counterclaims? Cross-claims?
A
To permissively join you cannot violate the complete diversity rule (you aren’t required to satisfy the amount in controversy).
Permissive counterclaims must satisfy both diversity and AIC.
Compulsory counterclaims need not satisfy jurisdictional amount.
If court has SMJ over original complaint, then cross-claims don’t need to satisfy the AIC or diversity.
13
Q
What’s removal?
When can a case generally be removed and who can do it?
A
A defendant may generally remove a case from state to a federal court with SMJ.
Removal is determined by pleadings that have been filed by the time petition to remove is filed.
14
Q
Where can a case be removed to?
What happens if a case is removed to the wrong place?
A
Removal must be to the district court for the district and division in which the state court action is pending.
Removal to the wrong district court is subject to a motion to remand (or transfer to the proper federal court).
15
Q
Rules re removal of a case based solely on diversity?
A
If removal is based solely on DJ, claim may be removed only if NO defendant is a citizen of the state in which the action was filed.
Diversity must exist at the time of original action filing as well as at time notice of removal is filed, unless:
- party preventing diversity is dismissed, or
- non-diverse party against whom P has no colorable claim was fraudulently joined to defeat diversity.
16
Q
If federal question claims are joined with claims that aren’t independently removable, can the case be removed?
A
Yes, the entire case can be removed.
17
Q
What are the timing and notice requirements for removal?
A
30 days from pleading: Defendant must file notice within 30 days after receipt by/service on the D of the initial pleading.
1-year limitation unless bad-faith P: A removal based on DJ cannot occur more than one year after action is commenced (⚠️ unless P acted in bad faith)
18
Q
Who of the defendants must join/consent in a federal question removal?
A
Only the defendants against whom the federal claim is filed must consent/join in removal.
19
Q
When can you bring a motion to remand for lack of SMJ?
Motion to remand for any other (non-SMJ) defect?
A
Lack of SMJ: Any time before final judgment is rendered.
Other reasons: Must be within 30 days after filing of notice of removal.
20
Q
What is concurrent/exclusive jurisdiction (for FQ claims)?
A
State courts and federal courts have concurrent JX of FQ claims, ⚠️ except when Congress expressly provides that JX of the federal courts is exclusive.
21
Q
What ways can federal question jurisdiction be found to exist?
A
Express: FQ exists if cause of action is expressly created by, and the underlying right is provided by, Fed law.
Implied: FQ likely to be found if right is created by Fed law, and a cause of action can be fairly implied and was intended by Congress.
Not express/implied: Complaint must involve a state claim that is:
- necessarily raised,
- actually disputed,
- substantial, and
- capable of resolution in Fed court without disrupting the Fed-state balance approved by Congress.
22
Q
What are the types of personal jurisdiction?
A
In personam
In rem
Quasi-in-rem
23
Q
What will a federal court look to, to determine if it has PJ over the parties?
A
State long-arm statutes.
24
Q
What are the Due Process requirements for the exercise of PJ?
A
Minimum contacts, fair and reasonable: A federal court may not exercise PJ over a D unless the D has “minimum contacts” with the forum state and the exercise of JX would be fair* and reasonable.
Purposeful availment: D’s contacts with forum state must be purposeful and substantial, such that D should reasonably anticipate (foresee) being taken to court there.
* The DP requirements are satisfied if nonresident D has certain minimum contacts with the forum state such that the maintenance of the action “does not offend traditional notions of fair play and substantial justice.”
25
Can PJ be consented to?
**Yes**.
A party may expressly, impliedly, or voluntarily consent to PJ.
26
What are the defenses to an exercise of PJ?
When must they be asserted, and what happens if you don't?
Lack of JX,
insufficiency of process
insufficiency of service of process.
They must be asserted in **responsive pleading** (or motion before), and failure to object **waives** the objection.
27
What are the bases for in personam JX?
(*i.e.* How can a court get in personam JX over sb?)
1. **Voluntary** (appearance alone does not waive right to object to PJ),
2. **Domicile** (if authorized by statute, a state has JX over person **domiciled** in state (person with capacity intends to make that state his home)),
3. **Consent** (D can expressly consent to JX by K or once an action is brought, impliedly through conduct, or voluntarily via appearance in court unless purely to object to JX),
4. **Long-arm statute** (authorizes PJ over **nonresidents** who engage in some **in-state activity** or cause some action to occur within state to extent permissible under Due Process Cl),
5. **Attachment of property** (if claim is **not related to ownership** of attached property, there must be **minimum contacts** between D and forum state to establish JX).
28
Difference between specific and general JX?
They are **types of PJ**.
_Specific_: when cause of action **arises out of** or closely relates to a **D's contact** with forum state, even if it's the only contact; specific personal JX is for that action only.
_General_: requires that D be **domiciled** in or have **continuous and systematic contacts** with the forum state; confers personal JX **even** when c/a **has no relationship with D's contacts** with the state!
29
When are an organization's contacts imputed for in personam JX purposes?
Partnerships: Each partner is generally **agent** of partnership.
Corporations: Out-of-state corporation's contacts with forum state don't automatically establish JX over wholly-owned subsidiary, unless it is parent's **alter ego** or acting as **agent**.
Employees/Agents: Contacts by nonresident employer's agents/employees are **imputed** to employer if acting within the **scope of agency/employment** (⚠️ not usu applicable to independent contractors).
30
What factors help determine whether an action would "offend traditional notions of fair play and substantial justice"?
Interest of **forum state** in adjudicating matter,
**Burden on D** of appearing in case,
Interest of **judicial system** in efficient resolution of controversies, and
Shared interests of the **states** in promoting common social policies.
31
Rule for in personam JX over corporations?
_Incorporated **in-state**_: **Any** action may be brought against a resident corporation.
_Foreign: "continuous and systematic" "essentially at home"_: (Foreign = not incorporated in forum state): Apply **minimum contacts** and **substantial fairness** rules. Test is whether a corporation's affiliations with the forum state are so "**continuous and systematic"** as to render the corporation **essentially "at home"** in the forum state.
A corporate D is always at home in: state **where incorporated**, and state of its **PPOB** (and in exceptional cases where operations are so substantial as to render the corp at home there too).
32
What is JX over a nonresident's website based on?
The degree of **interactivity** between the website and the forum, ranging from passive sites to those that are integral to D's business.
33
What can a contract help with, with regard to in personam JX?
In suits based on a K, the K can be a significant factor in determining whether **minimum contacts** exist, and choice-of-law provisions are significant in establishing that the out-of-stater **purposefully availed** herself to benefit of forum state's laws.
34
What is in rem JX?
It gives court authority to determine isseus concerning rights to **real/personal property**.
35
Do in rem and in personam JX have different due process requirements?
**No**, they are the same. For in rem, the **property** must generally be present within the forum state.
36
What are a defendant's big-picture rights with regard to in personam JX?
**Notice** and an **opportunity to be heard**.
_Notice_: must be **reasonably calculated** under the circs to **apprise** interested parties of pending action and **afford** them the **opportunity to object**. Form: via in-person delivery, registered mail, etc. if identity/address known or obtainable through reasonable efforts.
_Opportunity to be heard_: for D whenever there is **state-sponsored interference** with D's property interest.
37
What can you do to defend yourself against a jurisdictional claim?
Make a **collateral attack**.
38
Generally, where is venue proper?
Venue is proper in the judicial district:
where **any D resides** (if all D resides in same state),
where **substantial part** of the **events**/omissions occurred, or
where **property subject to the action is located**,
(otherwise where any D is **subject to PJ**).
39
For venue purposes, where does a defendant reside?
(Individuals) The district where D is **domiciled.**
(Organization as Defendant) Where D **subject to PJ**.
*(Organization as Plaintiff) Where **PPOB** is located.*
40
What is the general rule of transfer of venue?
_Original venue was proper_: Transfer permitted to **any district** where case **might have been brought**, or to which all parties **consent**.
* Diversity—New district court **must apply law from transferring** court.
* Fed Question—**New district court** in another appellate circuit will apply federal law as **interpreted by its own** court of appeals (⚠️ not the appellate circuit of the transferring court)
_Original venue was improper_: Either **dismiss** the case, or **transfer** to proper district if in the **interest of justice**.
* Diversity—New district court applies choice-of-law rules of the **state where located** (⚠️ not the transferring court).
* Fed Question—**New district court** will apply **its own court** of appeals interpretation of law (⚠️ not the appellate circuit of the transferring court)
41
May a court lacking in personam JX over the D transfer the case to a different venue?
**Yes**.
42
When is forum non conveniens used? (Venue)
A discretionary power for a court to decline to exercise JX; only used when the mst appropriate forum for the action is a **state or foreign court**.
**Burden** generally **on D**.
⚠️ But if **forum selection clause** designates a state or foreign court, **burden shifts to P**.
43
What is the *Erie* doctrine?
In Fed Question, use **federal law** (both substantive and procedural).
In **Diversity** action, use **state** **substantive** law and **federal** **procedural**.
With supplemental JX, use **state substantive** law for state-law claim.
44
How to distinguish substantive or procedural law? (*Erie*)
**Substantive** law includes:
* elements of **claim or defense**,
* **statute of limitations** & tolling(!), and
* **burden of proof**(!).
**Procedural** law includes:
* judge/jury allocation,
* assessment of attorney's fees, and
* equitable/legal determination.
When state and Fed laws conflict, and _there's a valid federal statute_ on point, **apply federal law**.
⚠️ Only use the federal rule if it **does not abridge, enlarge, or modify any substantive right**.
When there's _no federal statute_ on point, **apply state law** if failure to do so would lead to different outcomes between state and fed court.
45
When to apply federal common law? (*Erie*)
Fed Question—apply federal law for:
* Admiralty,
* When the U.S. is a party,
* Interstate disputes,
* Cases implicating foreign relations,
* Cases in which gov't acts in proprietary role (e.g. enters Ks), and
* When Congress has left a gap in a statutory scheme.
Diversity—when a **"uniquely federal interest"** is at stake and a significant conflict exists between that interest and the operation of state law.
If state JX is concurrent with FQ JX and Fed common law would have applied in Fed court, then it will also apply in state court.
46
What conflict-of-law rules does a federal court apply? (*Erie*)
Federal court must apply **state's conflict-of-law rules**.
Diversity—District court is bound by conflict-of-law rules of state in which it is located, but only to the extent that the state's rules are valid under the FFAC and Due Proc Cl.
47
Timeframe for service of process?
Must serve process within **90 days after** filing of **complaint**.
_Service of Process = Complaint + 90 days_.
48
How can an individual be served?
**Personally**,
At D's **usual place of abode** with a person of **suitable age/discretion** who **resides** there, or
to D's **agent**.
49
How can an organization be served?
To **officer** or **agent**,
or by following state law.
50
What requirements to get waiver of service?
Request for waiver must be **in writing** and **addressed to D** (individual or officer/agent of corp), and must give D **reasonable time of at least 30 days** after request sent to return waiver.
51
What is the effect of a waiver of service?
A waiver of service **extends time to serve the answer** from 21 (after service of process) to **60 days** (after **waiver request** sent—90 if foreign).
52
What is the purpose of a TRO?
A **temporary restraining order** preserves the **status quo** until an opportunity for a full hearing.
53
How long is a TRO effective?
A limited time (**no longer than 14 days**, absent good cause or the adversary consents).
54
When can a TRO be issued without notice?
If **immediate and irreparable injury** will result, and
movant's attorney certifies **efforts** made to give notice and the **reason** why notice should not be required.
55
Can you appeal a TRO right away?
**No**, a TRO is not generally immediately appealable.
56
What is a motion to dissolve?
A motion to dissolve is used for a **TRO issued without notice**. The adverse party may appear and **move to dissolve or modify the TRO** (must give **2 days' notice** unless the court sets a shorter time).
57
What requirements for a preliminary injunction?
May be issued to a P if:
1. P is **likely to succeed on the merits**,
2. P is likely to suffer **irreparable harm** in the absence of relief,
3. **Balance of equities** is in P's favor, and
4. Injunction is in the **public interest**.
**S**ucceed, **I**rreparable **H**arm, **B**alance of **E**quities, **P**ublic **I**nterest.
Preliminary Injunction = "S-IH-BE-PI"
58
When is a preliminary injunction issued?
**Prior to a full hearing** on the merits, **upon notice** to the defendant.
59
How long does a permanent injunction last once issued?
**Until dissolved** by the court.
But any affected person may move for modification or dissolution.
60
What is the standard for issuance of a permanent injunction?
**Same as preliminary injunction**, ⚠️ but must show **actual success** on the merits.
"S\*-IH-BE-PI"
\* actual success
61
What must a complaint contain?
1. Short/plain **statement** of the court's **SMJ**,
2. P's entitlement to **relief**, and
3. **demand** for judgment.
The FRCP use Notice pleading.
62
Timeframe for motions against the complaint?
Motions against the complaint (12b, 12b6, 12c...) must be made **within 21 days of service**.
_Dispositive motions = Service of process + 21 days_.
63
When can you move to dismiss for lack of SMJ?
At **any time**.
64
When can you move to dismiss for lack of PJ, improper Venue, or insufficient process/Service?
In **pre-answer motion**, or in the **answer**, or within time to amend answer as of right.
⚠️ Otherwise you **waive** the right to object to these.
65
What is the "Omnibus Motion" rule?
A 12b motion raising a single defense but omitting the others **waives the excluded defenses**.
66
When can a failure to state a claim or failure to join necessary party be raised?
In **any pleading**, motion for **judgment on pleadings**, or **at trial**.
67
What can a court consider to decide a 12b6 motion to dismiss for failure to state a claim?
Court can consider only allegations and attached exhibits in the **Complaint**.
68
What is the court's approach to deciding a 12b6 motion to dismiss (for failure to state a claim)?
Court will **treat well-pleaded facts as true**, **resolve doubts**/inferences **in P's favor**, and view pleadings in **light most favorable to P**.
1. *_**Reject conclusory** non-factual stuff_: Identify and reject legal conclusions unsupported by factual allegations.*
2. *_**Treat well-pleaded facts** as **true**_: Assume truth/veracity of well-pleaded facts and include context-specific analysis that draws on court's judicial experience and common sense to determine if allegations plausibly give rise to relief.*
69
When will a 12b6 be granted?
Claim will be dismissed for 12b6 if the claim:
* fails to **assert legal theory** of recovery cognizable at law, or
* fails to **allege facts sufficient to support** cognizable claim.
70
How strong must your facts be to avoid a 12b6?
Must raise right to relief **above speculation**, assuming that complaint allegations are true, and raise **reasonable expectation** that **discovery will reveal** evidence of necessary element.
71
What is a motion for judgment on the pleadings? 12c
**After Answer** filed, allows court to dispose of a case when **material facts are not in dispute**, and judgment on merits can be achieved based on the **content of the pleadings**.
72
What is a motion for a more definite statement?
Used if claim for relief is **so vague**/ambiguous that party **cannot reasonably draft responsive pleading**.
73
What is a motion to strike?
When pleading contains **insufficient defense**, or material that is **redundant, immaterial, impertinent,** or **scandalous**, court may order that defense/material **stricken**.
_Bullshit-avoidance_: It can be used to avoid unnecessary time/money litigating invalid issues.
74
Can you amend a motion?
FRCP doesn't address it, but generally courts allow it if the party acts promptly.
75
What must an Answer contain?
Answer must admit/deny P's allegations, or plead lack of sufficient knowledge (with reasonable investigation)
"**Yes**, **No**, or **I don't know**."
76
When must affirmative defenses be raised?
D must state them in the **Answer** or they are **waived**.
77
Timeframe for filing an Answer?
Timeframe for filing a Counterclaim/Cross-claim?
(No motion to dismiss) Must be filed within **21 days after service** (or 60 days if D timely waived service)
(Motion to dismiss) No filing while motion is pending, and within **14 days after notice** of court's action
_Answer = Service + 21 days_
⚠️ Answer after motion to dismiss = _Court's action + 14 days_
_Counter-claim/Cross-claim = Service + 21 days_
78
Timeframe for filing a Reply?
Within **21 days** after being served with court order to reply.
_Reply = Court order + 21 days._
79
What are the rules about amending a pleading?
Party may amend a pleading **once as of right** **within 21 days** if no responsive pleading is required,
or after being served with an answer or 12b motion,
otherwise during/after trial if it conforms to evidence and opposing party has opportunity to prepare.
Court should freely give leave to amend a pleading when justice so requires and will not result in undue prejudice to opposing party.
80
How does relation back work?
Relation back is for amended pleadings.
A new **claim** will **relate back** to the date of the original pleading if:
1. the amendment asserts a claim or defense that **arose out of** same **conduct, transaction, or occurrence as original pleading**.
A new **party** will **relate back** to the date of the original pleading if:
1. the amendment asserts a claim or defense that **arose out of** same **conduct, transaction, or occurrence as original pleading**,
2. the new party **receives notice** of action **within 90 days** after original complaint filed, AND
3. D knew or should have known about action **but for mistake** concerning proper party's **identity**.
81
Timeframe to respond to an amended pleading?
Within **14 days** after service of amended pleading, or **time left** on **original** pleading, whichever is **later**.
Response to amendment = Later of: _Amended Service + 14 days_ or _Time left on original_
82
What are the types of Rule 11 sanctions?
Nonmonetary directives,
Penalties to court,
Payments to movant for attorney's fees/other expenses directly resulting from violation (if imposed on motion)
83
To what do Rule 11 sanctions apply? Not apply?
Court may impose sanctions limited to what suffices to **deter repetition** of conduct by others similarly situated.
⚠️ Does not apply to mandatory disclosures and discovery requests, responses, and objections.
84
What is permissive joinder analysis?
**Permissive joinder** = Ps and Ds may be joined right to relief arises out of the **same transaction, occurrence** AND **question of law or fact common to all Ps or Ds** will arise.
Still requires PJ over the new party and SMJ over the case.
⚠️ Adding Ps: Supplemental JX **is allowed** for amounts less than AIC, but there still **must be complete diversity**.
85
What is compulsory joinder analysis?
1. First ask: is the party to be joined **necessary**?
2. If necessary, we must ask whether there is PJ over them, and whether adding them **would ruin diversity** (if diversity is the basis for Fed SMJ).
3. If it would ruin diversity, ask: are they **indispensable**?
4. If indispensable, court should **dismiss** completely. If not indispensable, court can deny the joinder motion and hear the case without the party.
86
When is a party necessary? (Rule 19 Compulsory joinder)
A party is necessary if:
Court **cannot afford complete relief** without him,
There's a danger that **the party** would be **harmed without joining**, or
There's a risk of an **inconsistent** judgment or **double liability**.
87
When is a necessary party indispensable? (Rule 19 Compulsory joinder)
Factors for whether a new party is **indispensable**:
Extent to which **judgment would prejudice** the parties in the person's **absence**,
Extent to which **prejudice could be reduced/avoided** by **protective provisions**,
Whether a judgment rendered would be **adequate**, and
Whether the P would have an **adequate remedy** if **action were dismissed** for nonjoinder.
88
What will stop joinder of a party?
In a case where SMJ is based only on diversity, and joining the party would destroy diversity, **the party can't be added**.
If the court has no PJ over the party, **the party can't be added**.
89
What is intervention? When can someone intervene?
Intervention is when a third party **wants in** to a lawsuit. You **cannot intervene** in a case based on diversity **if you would ruin diversity**.
A person may intervene **as of right** (court must let them in\*) when:
the nonparty **has interest** in property/transaction that the lawsuit is about, and:
disposition of the action may **harm** the nonparty's interest, or
the nonparty's interest is **not adequately represented** by existing parties.
The court **can let** someone intervene (**permissive** intervention) who:
has a claim/defense that **shares common question of law or fact** with the lawsuit they're trying to intervene in.
⚠️ If Q has a **statutory right** to intervene, then the above are not needed, the rules let them in.
90
What is interpleader? What special rules govern it?
Interpleader is when a **stakeholder** (sb holding ppy) forces all **potential claimants** into a single lawsuit.
_Federal statutory interpleader_ has **its own special DJ,** satisfied where **any two adverse claimants** are citizens of different states, and property at issue must be **$500 or more**. It allows for **nationwide PJ and service** of process, and venue is proper anywhere a **claimant resides**.
⚠️ In interpleader, **only the stakeholder needs to be diverse** from the claimants for DJ. (Claimants need not be diverse among themselves).
⚠️ Court must have PJ over claimaints, however.
91
What can be aggregated together to satisfy the amount-in-controversy requirement?
**Claims** brought by a plaintiff can be aggregated to meet DJ AIC requirement.
⚠️ When SMJ is based on FQ, nonfederal claims can only be joined if DJ exists or if claims are part of same case/controversy.
92
When is a counterclaim compulsory?
If it arises out of **same transaction or occurrence** that is subject matter of opposing party's claim, and doesn't require adding a party the court **has no JX over**.
No need for independent SMJ from original claim (compulsory counterclaim = counterclaim over which court has SJ, by definition)
93
What is needed for a permissive counterclaim?
A permissive counterclaim, aka when it is not compulsory, **needs SMJ (via DJ or FQ)** to assert it.
94
When can you assert a cross-claim?
If it arises out of **same transaction or occurrence** that original lawsuit or counterclaim is about.
(No need for independent SMJ, because court has SJ for these by definition).
⚠️ A party **cannot object to venue** over a cross-claim.
95
What is impleader?
A defending party (D, suing sb else as "third-party P") can implead a nonparty ("third-party D") for liability on original claim.
96
When can impleader be asserted?
**Any time** aftetr complaint is filed.
⚠️ But the defendant who is impleading ("third-party P") must **get court permission** if filed **more than 14 days after service of Answer**.
97
What can stop an impleader?
In a lawsuit whose SMJ in federal court is based **solely on diversity**, then claims against the third-party D **must meet DJ or FQ JX requirements on its own**.
Court must also have PJ over third parties that are impleaded.
98
Requirements of a class action?
1. **Numerosity**—class is so numerous that joinder of all members is impracticable
2. **Commonality**—must be questions of law or fact common to class
3. **Typicality**—claims/defenses of representatives must be typical of class, and
4. **Adequacy**—representatives must fairly & adequately protect the interests of the class.
99
What situations can a class be certified?
**Risk of prejudice**: separate actions would create risk of inconsistent adjudications or impair class members' interests
**Final equitable relief**: the class shares a general claim and injunctive/declaratory relief is sought; a single, indivisible remedy would provide each class member with relief (thus $$$ dmgs not available)
**Common legal/factual questions**: must **predominate** over questions affecting individual members, class action must be superior method for effecting fair & efficient adjudication. Class members don't need to establish likelihood of success on their common question of law
100
In class actions, whose residence matters for venue purposes?
The residence of class **representatives** matters.
(⚠️ not class members)
101
What are the SMJ requirements for a class action?
For diversity: Class **representatives** must be diverse from class opponents, and
at least one P must meet the $75,000 JX amount.
Or the class action can have SMJ via FQ or the Class Action Fairness Act of 2005.
102
What can a party get through discovery?
A party can obtain discovery regarding any **non-privileged** matter that is **relevant** to any party's **claim or defense**. It must be **proportional** to the needs of the case.
103
In order to be discoverable, does information have to meet overcome evidentiary objections?
**No**, information does not have to be admissible as evidence in order for the opposing party to get it through discovery.
⚠️ If it's privileged, though, you can't discover it.
104
What must be disclosed in the mandatory initial disclosures?
What is the standard?
Information regarding individuals having discoverable info, documents supporting claims/defenses, computation & backup of damages, or relevant insurance agreement for satisfying judgment.
Standard: information **reasonably available to it**, and party not excused for not fully investigating case, challenges to insufficiency of another party's disclosures, or because another party failed to disclose.
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Timeframe for initial disclosures?
Within **14 days** after the parties' discovery **conference**.
_Initial Disclosures = Conference + 14 days_
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What must a party bringing an expert witness disclose?
Timeframe for these disclosures?
Must **identify** expert witnesses and produce expert **report** subject to certain requirements.
**At least 90 days before trial** or **30 days after** disclosure of **opponent's expert** evidence on the same subject matter.
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What generally falls within mandatory pretrial disclosures?
Timeframe for these?
**Evidence** to be presented at trial other than for impeachment, generally a witness list by testimony or deposition, and documents & exhibits.
**At least 30 days before trial**.
Objections must be made **within 14 days** after disclosures, **or else waives** absent good cause.
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What duty exists with regard to discovery?
**Duty to preserve**.
Potential litigants have a **duty to preserve** potentially relevant evidence when litigation in **reasonably anticipated**/probable; duty includes **affirmatively preventing destruction/alteration** of evidence!
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What body of law determines whether information is privileged (and thus not discoverable)?
(FQ cases): Federal common law
(DJ or SJ cases): State law
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What rules about discoverability of trial preparation materials?
Party **may not discover** documents and tangible things **prepared in anticipation of litigation** or for trial, unless other party shows:
1. that it has **substantial need** for the materials to prepare its case and
2. without **undue hardship**, **cannot obtain** their substantial equivalent by other means.
**Mental impressions**, conclusions, opinions, or legal theories of party’s **attorney** or other representative are **protected**.
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What is privileged with regard to experts? (Discovery)
Expert witnesses may be deposed, but **expert report drafts** and **disclosure** are **protected**, as are any **communications between the party’s attorney and expert witness,**
⚠️ unless they relate to:
* **compensation**,
* facts/**data** used, or
* **assumptions** relied upon by expert in forming his opinion.
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When must the discovery conference be held?
Parties must confer **at least 21 days before** **scheduling conference**.
)To consider nature and basis of their claims/defenses and possibility of settlement, automatic disclosures, preserving discoverable information, and developing discovery plan)
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What are the discovery devices and their uses?
**Oral depositions**—Can take place **any time** after discovery conference. Limit: **10 per party** (absent good cause)
**Interrogatories**—Must be fully and separately answered under oath unless timely objected to with specificity. Limit: **25 written rogs per party** (NB: also bound by relevance/proportionality).
**Requests to produce documents**—Party has **30 days from service with request** to respond (or 30 days from parties' first conference if the request was served prior to the conference).
**Physical/mental exams**—Court may order person to submit to exam **if physical/mental condition is in controversy**.
**Requests for admission**—A party can serve written request for admission, which once admitted is conclusively established.
**Subpoenas**—Issued from the court, used to command a nonparty to take action (e.g. attend a trial, testify).
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What is a motion to comepel used for?
For failure to make automatic disclosures or failure to respond to discovery requests (including both incomplete responses and non-responses).
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What duties and consequences re ESI (electronically stored information)?
If ESI that should have been preserved is **lost** because a party **failed to take reasonable steps to preserve** it, the court may order measures to **cure the prejudice**.
If the party acted with the **intent to deprive** the opponent of the info, the court should instruct the jury with a **rebuttable presumption** that the info was **unfavorable** to the party (or dismiss the action, or enter a default judgment).
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What is a default judgment?
When a party **fails to defend** an action, P may seek default judgment.
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Timeframe for default judgment?
P may seek default judgment after **at least 7 days' notice to D** if D has appeared.
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For what can a default judgment be set aside?
For **good cause**, depending on whether D's failure to act was willful, setting aside the default would prejudice P, and D presented a meritorious claim.
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What is the standard for summary judgment?
No **genuine dispute** as to any **material fact**, and the movant is **entitled to judgment as a matter of law**.
Court will construe all evidence in the **light most favorable** to the **nonmoving party** and resolve all **doubts** in their favor as welll.
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What is the burden of proof re summary judgment?
The **movant** has **burden of persuasion** to show prima facie case before the burden **shifts** to the opposing party to set forth specific evidence showing **the existence of a genuine issue of fact**.
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Timeline for when must summary judgment be filed?
May be filed anytime **until 30 days after close of discovery**.
Nonmovant generally must be given sufficient opportunity to obtain discovery.
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Timeline for sending a jury demand?
Must be served within **14 days after service** of the **last pleading on the issue to be tried by the jury**.
123
In a state law case later removed to federal court, what happens to the state law jury demand?
**Nothing**, a party who has made a jury trial demand in accord with state law **does not need to renew the demand**.
If state law does not require a party to make a jury trial demand, a party does not need to make one after removal (unless court orders otherwise).
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What is the required size of a jury?
Between **6 and 12**.
| (No less than 6, no more than 12)
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How many jury challenges does each side get? (Jury selection)
The court will allow **three peremptory challenges** for **each party** in civil cases.
⚠️ An **unlimited** number of challenges are permitted **for cause** (e.g. bias, personal relationship with litigant).
⚠️ Peremptory challenges may not be made for race- or gender-based reasons.
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By default, what things must the jury verdict be?
Unless the parties stipulate otherwise, a jury **verdict** must be:
**unanimous**, and
returned by a jury of **at least six jurors**.
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When are jury instructions requested by a party from the judge?
A party may **request** the court to give specific instructions at the **close of evidence** (or earlier if ordered by the court).
**Prior to final arguments**, the court **must inform** the parties of instructions it proposes to give to the jury; parties may object to them on the record and out of the jury's hearing.
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What are the types of jury verdict?
**Special**—**written finding by jury** on **each issue of ultimate fact**. The judge then determines the legal consequence of those findings.
**General**—typically a decision by the jury as to **who wins** and, **if it's the plaintiff**, the amount of **damages**.
**General with special interrogatories**—each ultimate fact AND who they think should win (used to ensure that the jury independently considered the material facts of the case in arriving at its verdict)
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What forms can juror misconduct take?
What consequences?
**Concealing** facts re his qualifications,
Giving false voir dire testimony (Party must show the juror failed to answer honestly a **material question** and that the proper response **would have provided** a valid basis for a **for-cause challenge**),
Violating the **confidentiality** of deliberations,
Being **improperly influenced** by non-jurors,
Investigating **facts outside** of those presented at trial.
Court may **dismiss** juror or order a **new trial**.
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Can a juror testify? What about?
**Yes**, only about:
whether **extraneous prejudicial information** was improperly brought to the jury's attention, or
whether any **outside influence** was improperly brought to bear on a juror.
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What standard of review for a court's findings of fact?
Can be set aside on appeal only if **clearly erroneous**.
132
What can a judge do with issues that need separating or searate issues that belong together?
Court can join (**consolidation action**) any or all matters at issue, consolidate the actions, or issue any other orders to avoid unnecessary cost or delay, as long as there is a **common question of fact or law**.
A court may order a **separate trial** of one or more issues or claims for convenience, to avoid prejudice, or to expedite/economize. ⚠️ Any federal right to a jury trial must be **preserved**.
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What is JMOL? When is a motion for one filed?
A court may grant a motion for **judgment as a matter of law** (JMOL) when the **evidence** is **legally insufficient** for a **reasonable jury** to find in the nonmovant's favor in a civil trial.
**Any time before case is submitted** to the jury, a party may file a motion for judgment as a matter of law ("**directed verdict**"). The court must view evidence in **light most favorable** to, and draw all reasonable **inferences** from evidence in favor of, the opposing party.
After the verdict and entry of judgment, a party may **renew their** **motion for JMOL** (motion for "**judgment notwithstanding the verdict**", **JNOV**).
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Timeframe for filing a JNOV?
No later than **28 days after entry of judgment**.
JNOV can be granted only on grounds raised in the pre-verdict motion (JMOL).
Court may:
allow judgment on the verdict,
order a new trial, or
direct the entry of judgment as a matter of law.
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Does a judgment have to match the pleading?
**No**, generally judgment should grant a party the relief to which it is **entitled**, even if not requested in pleading.
⚠️ A **default judgment** must match: it must not **differ in kind** nor **exceed** **amount** demanded in pleadings.
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Timeline for motion to alter or amend a judgment?
Must be made within **28 days of the entry of judgment**.
137
Timeline for motion to amend or make additional findings (non-jury trial)?
Must be made within **28 days of entry of judgment** (may be combined with a new trial motion).
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What circumstances can a court relieve a party of final judgment?
A court can relieve party of final judgment within a reasonable time, and **no later than 1 year following judgment entry** for:
(i) **mistake**, inadvertence, surprise, or excusable neglect,
(ii) **newly discovered evidence** (not previously discovered through reasonable diligence), or
(iii) **fraud**, misrepresentation, or misconduct by opposing party.
139
What requirements for FFAC?
If valid judgment is rendered by court **with JX** over the parties, parties receive **proper notice** and a **reasonable opportunity to be heard**, the judgment will receive same effect in other states as the state where rendered.
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What is claim preclusion? Requirements?
**Claim preclusion** (res judicata), to bar a subsequent claim, requires:
**valid, final judgment on the merits** (court must have had PJ and SMJ, D must have had **notice & opportunity** to be heard, must be **nothing left** for court to do but enter judgment, decision must not be technical but rather on **merits**,
sufficiently **identical claims** (original and later-filed claim must be sufficiently identical to be barred under claim preclusion), and
sufficiently **identical parties** (P and D must be same people, in the same roles, in original and in later-filed action).
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What is issue preclusion? Requirements?
For **issue preclusion** (collateral estoppel), "offensive" ("sword") use may be permitted.
Requirements:
**Same issue**—facts relevant to particular issue and applicable law must be identical,
**Actually litigated**—the issue must have been actually litigated in the prior action**,**
**Final, valid judgment**—first determination of issue was within authority of court that decided it, and the determination was final decision on the merits, and
**Essential to the judgment**—essential issue = one that constitutes a necessary component of the decision reached,
⚠️ In a **criminal case**, preclusion will be applied to **prosecution-favoring issues** (issues decided in favor of prosecution are generally preclusive in a civil action against D based on the same conduct), but ***not* preclusive for Defendant-favoring**, because P in the civil action was not a party to the criminal prosecution.
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Can jury instructions be raised on appeal?
Generally **no**, unless a party objects on the record to an erroneous instruction (given or proposed), or to the court's failure to give one requested by a party.
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What is the scope of a right to jury trial?
A party may **specify the issues** for which a **jury trial is demanded** (a generic
demand is treated as requesting a jury trial for **all issues** triable by a jury).
Court has discretion to authorize an **advisory jury** to issue non-binding findings on any
**issues of fact**, and may **either adopt or disregard** the advisory jury’s findings.
⚠️ A party may **withdraw** a jury trial demand with the **consent** of the other parties.
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What body of law determines whether there is a right to a jury trial?
For state-law claims in diversity actions, **federal law** will determine whether there is a jury trial right.
Action at law is tried on demand to a jury.
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When is a dismissal involuntary, and what does that entail?
A dismissal is **involuntary**, and thus is granted **with prejudice** and operates as an adjudication **on the merits**, when P fails to prosecute or comply with the Rules or court order, and D moves to dismiss.
