CIVIL PROCEDURE Flashcards
1
Q
In what stage of the proceedings MUST a challenge to PJ be asserted by the Defendant?
A
A challenge to PJ MUST be asserted in the first pre answer motion (if no pre answer motion, in the answer), or else the defense of PJ is WAIVED and the D implicitly consents to that court’s jurisdiction over them.
2
Q
Can a preliminary injunction be issued without notice to the adverse party?
A
NO! PI may be sought by a party prior to trial on the merits of the complaint but may NOT be issued without notice to the adverse party.
3
Q
When can a TRO be granted?
A
TRO can be granted when necessary to prevent irreparable injury to party + injury will result before a PI hearing can be heard. Can be granted ex parte (w/o notice to the other party) if moving party can show (1) specific facts showing an immediate and irreparable injury; (2) an effort to give notice to the adverse party, and (3) security to cover possible costs and damages
4
Q
Where must a D seeking removal of a case from state court to federal, file notice?
A
D seeking removal must file a notice of removal in the federal district court in the district and division within which the ACTION IS PENDING! e.g. original lawsuit filed in state A. the lawsuit can only be removed to the fed district court that embraces the State A court (you can’t go directly to state’s fed district court where you want to remove action to). If you fail to do this, this is enough to grant a MOTION FOR REMAND back to state court.
5
Q
How must a federal court analyze personal jurisdiction over a party?
A
A federal court can piggyback onto the longarm statute of the state in which it sits. If the state court would have personal jurisdiction over this defendant, then a federal court in the same state will as well. A federal court must analyze PJ as if it were a court of the state in which it is located.
6
Q
When must the defense of PJ be asserted in a motion to dismiss?
A
The defense of lack of PJ is only valid if presented in the FIRST motion to the court. Even if it was included in an answer, if the D had filed a preanswer beforehand, it will be waived (as it should have been in the preanswer).
7
Q
Can lack of PJ be waived?
A
YES! If it is not raised in the FIRST motion (i.e. in the first preanswer motion) then it is waived.
8
Q
Can lack of SMJ be waived?
A
NO!
9
Q
What is attachment?
A
The process by which someone’s property is seized in accordance with a writ or judicial order for the purpose of securing a judgment yet to be entered. Federal courts are authorized to issue provisional remedies, including attachment, at any time following the commencement of the action for the purpose of securing satisfaction of the potential judgment.
10
Q
What is a motion of relief from judgment (motion to set aside) and what kind of mistake does it seek to remedy?
A
When you ask the trial court to set aside or amend the judgment. Under FRCP Rule 60(b), a court may relieve a party from final judgment on one of these grounds: (i) mistake/excusable neglect; (ii) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial; (iii) fraud/misrep by opposing party; (iv) judgment is void; (v) judgment is based on an earlier judgment that has been reversed or vacated. Grounds (i) (ii) (iii) - motion must be made w/in a reasonable time, not to exceed 1yr, others = a reasonable time.
11
Q
What is the doctrine of forum non conveniens and what may a court do under it?
A
A court having jurisdiction over a particular case may use its discretion to decline to exercise that jurisdiction if the court concludes that the action could be more appropriately tried in some other jurisdiction.
12
Q
Which defenses must be raised by the D the first time he files a motion or in his answer?
A
- Lack of personal jurisdiction
- Improper venue
- Insufficient Process/improper process (problem with a document)
- Insufficient/improper Service of Process
13
Q
What is the proper method of dismissing a case on the basis of lack of PJ?
A
Filing a motion to dismiss. Lack of PJ is one of several defenses that are waived if the D does not raise them in the D’s pre-answer motion or answer (whichever the D files first). If not, it is waived as a defense.
14
Q
What is a motion for judgment on the pleadings?
A
This ask for the court to evaluate the moving party’s contention on the face of the pleadings and make a judgment.
15
Q
What do you look at when someone is seeking to reopen a judgment on the basis of mistake?
A
This is a motion of relief from judgment/motion to set aside. For a motion of relief on the basis of mistake, it must be filed within 12 months of the judgment being entered into. This applies even if the party move promptly after learning of the mistake for which relief would be sought.
16
Q
Is another potential defendant who might be jointly or severally liable a required party in an action?
A
No! The possibility of joint and several liability does not automatically render a defendant a required party.
17
Q
When will a motion to dismiss be granted?
A
18
Q
When does compulsory joinder apply?
A
Applies to ‘required’ (i.e. ‘necessary’) parties: any person who either (i) is required for the court to be able to accord complete relief among the existing parties; OR (ii) has such an important interest in the case that not joining them will either cause them a practical impairment/impediment in protecting their interest (i.e. their interest will be harmed) OR expose an existing party to a substantial risk of multiple or inconsistent liability.
19
Q
What does a ‘necessary’/’required’ party mean?
A
You do not necessarily need a necessary party’s presence to continue with the case. It is just necessary to join them if feasible. If the court decides to dismiss rather than proceed with the absentee, the absentee is called ‘indispensable’.
20
Q
What needs to be in place for a necessary/required absent party to be joined to an action? i.e. for the joinder to be ‘feasible’.
A
Joinder is feasible if: (i) there is PJ over the absentee and (ii) there will be federal SMJ over the claim by or against the absentee
21
Q
What happens when a party seeks to appeal a district court’s order granting or denying a class certification?
A
A district court’s order granting or denying certification of a class action can be appealed w/in 14 days of entry of the order. The Court of Appeals has broad discretion in deciding whether to hear the appeal. If the appeals court decides to hear the appeal, proceedings are NOT stayed in the district court unless the DC or CoA so orders.
22
Q
How can a nonmoving party squash the moving party’s movement for summary judgment?
A
By offering evidence that raises a material issue of fact - showing that a reasonable jury could find for the nonmoving party. I.e. provide evidence that, if uncontroverted, would compel a jury verdict in his favor. If there is no genuine issue of material fact, the court is likely to grant a summary judgment.
23
Q
What does Rule 11 of FRCP impose?
A
In Federal courts, pleadings must be nonfrivolous and not issues to harass or delay the adversary. A lawyer who fails in this duty will be fined or otherwise sanctioned.
24
Q
Under Rule 11 of the FRCP, when a laywer files a pleading, what does he certify, to the best of his knowledge?
A
- The pleading is not presented for an improper purpose (e.g. harass, cause unnecessary delay, needlessly increase cost of litigation).
- claims/defenses/other legal contentions are warranted by existing law or a non-frivolous argument for a law change
- Factual contentions and denials have evidentiary support or are likely to after further investigation
25
What does and does not Rule 11 of FRCP apply to?
It applies to pleadings and sanctions regarding matters in violation of the rule.
It does NOT apply to disclosures and discovery requests, responses, objections and motions. It also does NOT apply to failure to respond to questions during a deposition.
26
Under FRCP, what should pleadings do?
Give notice to all parties of the nature of the lawsuit, sufficient to allow other parties to make pre-trial and trial preparation.
27
In a scenario where a plaintiff pleads something that involves him both relying and not relying on a statement made by the D, what is going to be the issue to come up here? (rule 11)
There is no way that he, in good faith, relied and did not rely on the D's statement.
It is possible that he could have inconsistent evidence with respect as to whether the D was telling the truth but he can't say he both relied and did not rely on the statement.
28
What standard of review does the court of appeals use when reviewing decisions on questions of law made by the district judge?
De novo standard - no deference is given to the district judge when reviewing a question of law.
29
How do appeals courts react to an issue involving finding of facts by a jury?
Appellate courts are very reluctant to reverse. Federal courts are held to a very high standard for reversing a jury's findings. Appeals court will generally ONLY overturn a jury verdict on a fact-finding error if there is COMPLETE absence of proof of some material issue.
30
Generally, only FINAL orders are reviewable on appeal, what does this mean?
A final order is one that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties but as to all causes of action involved.
Ask: after making this order, does the trial judge have anything left to do on the merits of the case?
31
How do appeals courts react to an issue involving finding of facts by a judge in a bench trial?
Federal courts must not set aside findings of fact made from the bench unless those findings were clearly erroneous.
32
When must an appeal be filed?
A notice of appeal must be filed in the district court within 30 days from the entry of the judgment appealed.
33
What standard of review is used by the appellate courts when reviewing discretionary rulings by the trial court e.g. evidentiary or discovery rulings - whether to grant a motion or amend pleadings etc
The abuse of discretion standard of review - the reviewing appellate court will be highly deferential to the trial court judge's factfinding ability.
34
What is a harmless error (appeals)?
Not every error (even an error of law) requires reversal on appeal. No reversal is required if the error is harmless, i.e. it did not affect the outcome of the case.
35
Explain the co-plaintiff exception to supplemental jurisdiction
When a co-P's claim doesn't meet the amount-in-controversy requirement of a diversity claim (i.e. it be MORE than $75k), it can still get supplemental jurisdiction if the insufficient claim is so related to claims in the action that are within the court's original jurisdiction that they form part of the same 'case or controversy'. The citizenship diversity in the case must be preserved.
36
What is 'removal'? Who can do it?
The D's right to send a case originally filed in state court to the federal district court for adjudication. ONLY the D can remove.
37
What must be in place for a civil action to be removed from state to federal court?
The federal court MUST have SMJ over the claim based on diversity or federal question jurisdiction
38
When must notice of removal be filed in federal court?
D must file notice within 30 days after service of process by P.
The notice must be filed in the district court where the state action is pending.
39
If an original action is pending in state X and D files a notice for removal, which district court will be the proper venue for removal?
A D must file a notice of removal in the district court where the state action is pending. This means that the proper venue for removal is the federal district court located in the state where the original case was filed SO the proper venue for removal is the district court in state X.
40
P sues D in state court in state A. D files a notice of removal in the federal district court of state B. P files a timely motion to remand to the state court in state A.
Should the motion to remand be granted and why?
Yes! D filed the notice of removal in the federal district court in state B BUT the action was pending in state court in State A. SO D sought removal to the incorrect court and the action should proceed in state court in State A.
A D must file a notice of removal in the district court where the state action is pending.
41
In what two scenarios is removal not possible un a diversity action?
1. Where the D is a citizen of the state where the action was originally brought (i.e. only out of state D's may remove diversity cases to federal court).
2. Case should not be removed if over 1 year has passed since it was filed in the state court UNLESS P acted in bad faith to prevent the D from removing the case.
42
If it was discovered that an attorney has used their 3 peremptory challenges in a racially discriminatory manner, what would happen to the verdict?
It would result in a reversal of the judgment on the verdict.
Race-based peremptory challenges in civil litigation between private parties violate the Equal Protection Clause.
43
What three things must be true for a claim to be precluded (res judicata)?
1. Same claimant suing the same defendant
2. Case 1 ended in a valid final judgment on the merits
3. Case 1 and 2 must be the 'same claim' - the same cause of action
NB - every judgment is on the merits unless it is 'without prejudice' or based on a lack of personal/SM jurisdiction, improper venue or a failure to join an indispensable party.
When the claimant wins the earlier lawsuit, the cause of action is 'merged' into the judgment - the claimant cannot sue again on the same cause.
44
What is the primary rights doctrine and how does it relate to claim preclusion? What is the contrasting majority view?
Majority view = a claim is any right to relief arising from a transaction or occurrence.
Primary rights doctrine = minority view - there are separate claims for property damage and personal injuries that arise in a single event
45
What must apply for issue preclusion?
1. Same issue was actually litigated and determined;
2. Issue was essential to the judgment (ie if decided on in the opposite way it would change the result of the case);
3. Valid final judgment on the merits;
4. Party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the first suit
46
Whom can issue preclusion be used AGAINST?
ONLY against someone who was a party to the original case or in 'privity' with a party.
So you can't litigate a dispute with your neighbor and win and then refuse to have the same legal dispute with someone else, UNLESS that other person is in privity with the person that you had the original dispute with. This is a due process principle - every person is entitled to their day in court before their property/rights are taken away or affected.
47
How do you determine whether the same issue was actually litigated in the prior action? (issue preclusion)
The issue must have ACTUALLY been litigated and determined, SO if a default or consent judgment is entered, there is no issue preclusion as to the facts that WOULD have been tried had the case gone forward.
48
When is an issue essential to the judgment (issue preclusion)
Look at how the issue was decided by the trier of fact - e.g. if a jury renders a general verdict for a D and doesn't address issues of contributory negligence - there is no way of knowing whether the jury found D was negligent.
The judgment must DEPEND on the ISSUE of FACT DECIDED
e.g. personal injury action, jury finds that neither P or D is negligent and so renders a verdict for D. The finding that P was not negligent was NOT essential to the judgment and so there is no issue preclusion for a later suit.
49
Against whom is issue preclusion used?
ONLY against someone who was a party (or in privity with a party) in the previous case. This is DP.
50
By whom is issue preclusion used?
ONLY someone who was a party (or in privity with a party) in the previous case can use IP. (NOT imposed by DP)
51
What is a valid final judgment (issue preclusion)?
A valid, final, judgment 'on the merits'. A judgment is valid as long as it is not void (e.g. lack of SMJ).
Generally = same process as determining if judgment is final for purpose of an appeal.
52
When is someone in 'privity' with someone from a prior action, thereby meaning issue preclusion CAN be used against them?
Issue preclusion can be used only against somebody who was a party to Case 1 or in “privity” with a party.
“Privity” means that a party to Case 1 represented someone who was not a party to Case 1 e.g. a class action binds all the members of a class even though not all class members are parties to the action, they were represented by the class rep.
A buyer and a homeowner are in privity with one another as successive owners of the same property.
53
What are some examples of where people are 'in privity' with one another?
People = in privity with one another if they share a substantive mutual interest, e.g.:
1. Landlord/tenant relationships (mutual interest in property and lease)
2. Grantor/grantee relationships (mutual interest in the property and transfer of ownership)
3. Receiving land from a common grantor - recipients of land from the same grantor have mutual interest in the property
4. Buyer and homeowner - substantive mutual interest in property
54
Can issue preclusion be used by someone who was NOT a party to case 1 (or in privity to a party)?
= nonmutual issue preclusion
- 2 types - nonmutual defensive issue preclusion and nonmutual offensive issue preclusion
Defensive = the person using preclusion was NOT a party to case 1 and is the defendant in case 2
Offensive = the person using preclusion was not a party to case 1 and is the plaintiff in case 2
55
When can a court exercise personal jurisdiction over a D?
1. When they consent
2. When a D is present in a forum state and personally served
3. When a D is domiciled in the forum state
4. D has committed acts bringing him w/in the forum's long arm statute.
The exercise of jurisdiction must then be constitutional (i.e. meet due process requirements).
56
What factors are to be considered to determine if the exercise of personal jurisdiction is constitutional?
Constitutional = if the D has minimum contacts with the forum so the jurisdiction does not offend the traditional notions of fair play and substantial justice AND there is notice.
Factors:
1. Contact
2. Relatedness
3. Fairness (for specific jurisdiction only)
57
If a cause of action does not meet the contact and relatedness requirements, can it still come under personal jurisdiction?
YES, if general jurisdiction is met - i.e. the D is 'at home' in the forum OR is present in a state served with process in that state/forum - the D can be sued at their home state for a claim that arose anywhere in the world.
58
When can a party move to strike material from a pleading? What can they strike?
A party can bring a motion to strike within 21 days after the complaint has been served OR court can do it on its own. Defendant will do this in their motion (i.e. their response to the complaint).
They can strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.
NB - most courts are reluctant to strike material from a pleading. Most judges feel pleader should be given opportunity to show on the merits that the material in question is founded in fact.
59
Once a complaint has been served by a P, the D must respond within 21 days (60 if waived service). The D can respond with either a motion or an answer. What is the difference between a motion and an answer?
Motions are NOT pleadings, they are requests for a court order. This is where the D brings up: issues re the form of the complaint, waivable defenses, other defenses that can be raised later.
An answer is a PLEADING - in this the D responds to the allegations in the complaint (admit/deny/insufficient knowledge) and raise affirmative defenses (inject new facts into the case that would allow the D to win, e.g. SoF, SoL, self-defense).
60
When must the lack of personal jurisdiction defense be raised by the D?
It MUST be raised in the D's first pre-answer motion (if none, then in the answer). E.g. a motion to dismiss is raised after the complaint has been served and so the defense of lack of PJ needs to be raised here!
SO if the D files a motion to dismiss for improper venue and then later attempts to contest PJ, it will NOT happen - he has waived his defense of lack of PJ by not raising it in the motion to dismiss.
61
What defenses MUST the D raise in their answer or he will waive the right to assert them?
3Ps and a V
1. Lack of PJ
2. Improper Venue
3. Insufficient process
4. Insufficient service of process
62
What are the 4 requirements for a class action?
1. Numerosity - too many class members for practicable joinder
2. Commonality - there must be some issue in common to all class members
3. Typicality - the class rep's claims are typical of the claims of the class
4. Representative Adequate - the class rep will fairly and adequately represent the class.
NCTRA (never call tigers really angry)
63
How does a class action meet diversity requirements?
For diversity cases, only the citizenship of the class rep is considered and her class must exceed $75k (doesn't matter about the other class members' claims).
BUT a federal court can also hear a class action under the Class Action Fairness Act (CAFA), if:
- there are at least 100 members
- any class member (not just the representative) is of diverse citizenship from any D
- the aggregated claims of the class exceed $5million
64
What is needed for sufficient service of process?
Any person who is at least 18 years old and not a party to the action can serve the summons and the complaint. The defendant is then required to answer the complaint within 21 days where service was proper.
65
For federal question jurisdiction, where must the federal question be presented?
In the P's complaint, as part of a well-pleaded complaint. The P's claim itself must 'arise under' federal law.
66
In a federal question case, what role will the federal law play, i..e how can we determine this is a federal question?
The federal law will be the source of the cause of action. Must determine whether the federal element is essential to P's case.
Is the P enforcing a federal right?
SO - federal SMJ extends to any case in which a well-pleaded case asserts either a cause of action arising under federal law or a state claim where P's right to relief depends on the resolution of a substantial question of federal law.
67
When is the right to a jury trial guaranteed?
It is only guaranteed in federal courts. Seventh Amendment - the right of a trial by jury is preserved for the parties in federal court only. It is preserved for 'civil actions at law' but not in suits at equity.
Seventh amendment does not apply in state court, only federal civil cases.
Sixth amendment = the right to jury in all criminal prosecutions.
BUT if the state legislation provides for jury trials in certain cases (e.g. in contract breach cases), the P can get a jury trial pursuant to the state legislation.
68
When does the seventh amendment preserve the right to a jury trial?
In federal courts of facts in all 'suits of common law' where the amount in controversy exceeds $20'
69
If damages are claimed as part of an action seeking equitable relief, can a D be entitled to a jury?
Yes! A D cannot be denied a jury on damages issues on the grounds that they are 'incidental' to the equitable relief.
70
Does the seventh amendment right to jury apply to suits at equity? Does it apply to state court?
It applies only to civil actions at law, not in equity. It applies only to federal civil cases, not in state court.
71
What happens to the right to a jury trial if a case includes both law and equity? E.g. a claim for damages and an injunction.
Facts underlying a damages claim will be tried to the jury and facts relating wholly to an equity claim are tried to the judge. Generally, jury issues - tried first.
72
When must a demand for a jury trial be made?
A party who wishes for a jury trial on a particular issue must file a demand within 14 days after service of the last pleading directed to that issue.
If not done - it is a waiver by that party of any right to trial by jury.
73
Where there is a case with claims in law and in equity, what happens when the same fact underlies both claims? (Jury)
e.g. did the D trespass on the Ps property - underlies both the claim for damages and equitable relief. JURY will decide that fact.
An issue common to both legal and equitable claims in the same proceeding must be tried by a jury when a jury has been timely and properly requested.
74
What are interrogatories and when can they be served on a party?
They are a discovery tool - written questions to be answered in writing under oath.
Parties CANNOT send discovery requests until after their initial 26(f) conference where they discuss claims, defenses, settlement possibilities, initial disclosures and discovery plans.
Within 14 days of that meeting they must submit their initial disclosures and proposed discovery plans.
SO if someone serves their interrogatories with the summons and the complaint this is NOT valid, they have to be served AFTER the rule 26(f) conference (i.e. the initial pre-conference and discussion of discovery).
75
What is the maximum number of interrogatories a party can issue and when do they have to be answered?
Maximum number is 25, absent a court order/stipulation.
They are to be answered within 30 days from their service.
76
What information should a party use to answer interrogatories? What if the answer can be found in business records?
A party must answer them based on information that is reasonably available.
If the answers can be found in business records and the burden of finding the answer would be about the same for wither party, the responding party can allow the requesting party to have access to the records.
77
Are interrogatories that inquire about legal contentions permitted?
Yes!
78
What is the rule around producing ESI in disclosure?
Computer files are discoverable on the same basis as paper documents.
The requesting party may specify the form/s in which the ESI is to be produced If requesting party does not specify the exact format, the responding party may choose between producing the information in a form in which it is ordinarily maintained, or in a reasonably usable form.
79
Who bears the cost of producing ESI
Presumption = the responding party
80
Can a party from whom disclosure has been requested, give the party the relevant documents and ask them to sort through them?
The party from whom documents are requested may NOT place the burden of identifying those documents on the party that has requested the documents.
81
What happens if the ESI is not reasonably accessible?
A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost.
The court will then decide if the information sought should be produced anyway by evaluating if the disclosure is proportional to the needs of the case.
82
What must a notice for deposition state?
It must describe with reasonable particularity the matters for examination.
This is so the person/corporation can be on notice regarding the facts. IF notice is not clear/particular, the party being served should object to the deposition notice and move for a protective order, excusing them from appearing.
83
What are protective orders used for in discovery?
They are obtained to limit the nature and scope of examination or to terminate examination if discovery is abused.
e.g. responding party thinks a discovery request subjects them to annoyance, embarrassment, undue burden or expense.
84
What is it necessary for the responding party to certify prior to seeking a protective order?
They must certify that they tried in good faith to resolve the issue without court involvement - that they asked the other side to 'meet and confer'.
85
What actions can the court take in response to a request for a protective order?
1. Deny discovery
2. Limit discovery
3. Permit discovery on specified terms
86
What if D moves for a protective order as they cite 'undue burden and cost' of producing required materials BUT the court finds that P does show good cause for discovery, what does the court do?
The court can order production and allocate expenses between the parties.
87
In discovery, costs of production can often be a cause of concern. What if P shows good cause to obtain the materials despite the costs being high, can the court do anything to assist with this?
The court can allocate costs if P shoes good cause to obtain despite costs. BUT they must try and work it out with the D BEFORE court involvement - party making motion must certify that they tried in good faith to resolve this issue without court involvement.
88
What is the process when deposing a corporation rather than a person? What must the corporation do in response?
A party can name a public/private corporation in its notice (of deposition)/subpoena
Party MUST describe with reasonable particularity the matters for examination.
Named organization must designate one/more officers/directors/managing agents/designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.
Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.
89
When is a subpoena used? For a party or a nonparty?
A PARTY does NOT need to be served with a subpoena - a notice of deposition is sufficient to compel their appearance.
BUT a NONPARTY MUST be served with a subpoena.
If party noticing the deposition fails to do so and the deponent fails to show up, the noticing party may be liable for costs to the other parties.
90
What is a pretrial conference and when is it held? What is entered into afterwards?
A pretrial conference is held w/in 90 days of D being served, it comes after a scheduling plan/conference which follows the Rule 26(f) conference.
It is held as close to the time of trial as is reasonable. It is for the purpose of formulating a plan for the trial, including the admission of evidence.
Once the conference is over, an order must be entered into that controls the subsequent course of events in the case - like a blueprint for the trial - listing witnesses to be called, evidence to be presented, factual and legal issues needing resolution.
91
At the end of a pretrial conference, the court enters into an order which provides a roadmap of proceedings going forward. Can this order be modified?
Once a trial court issues an order after a final pretrial conference, the order may only be modified to prevent MANIFEST INJUSTICE.
This objection would happen in the trial court - would move to modify the order to prevent manifest injustice.
92
When does the Erie Doctrine apply?
When there is diversity jurisdiction and there is a choice of law issue
93
What is the first step in Erie analysis?
You ask: is there a federal law (constitution/federal statute/FRCP/Federal rule of evidence) on a point that directly conflicts with state law?
IF SO - apply the federal law, as long as it is valid.
A FRCP (Federal Rule of Civil Procedure) is valid if it is 'arguably procedural'.
(i.e. federal court must apply state substantive law of the state in which it sits on all substantive issues in a case and for all procedural rules, a federal court sitting in diversity must apply federal procedural rules).
(= Supremacy Clause)
94
What is the second step in Erie analysis, i.e. if there is no federal law on point?
If no federal law on point, the federal judge must apply state law if the issue to be decided is 'substantive'.
5 issues = clearly substantive:
1. Conflict (or choice) of law rules
2. Elements of a claim/defense
3. Statutes of limitations
4. Rules for tolling statutes of limitations; and
5. The standard for granting a new trial because the jury's damages award was excessive/inadequate
CESTN
Charlie Eat Some Turkey, Now!
Conflict/Elements of claim or defense/SoL/ tolling SoL/New trial inadequate or excessive damages
IF it is NOT substantive - i.e. a matter of procedure, the federal judge may ignore the state law.
95
Which state law is applied to 'substantive' issues under the Erie doctrine?
Whatever law would be applied by the courts of the state in which the district court is sitting (it does NOT simply apply forum law).
Law of the state = the substantive law of the state - i.e. statutes, regulations and case law that are all specific to that state.
Forum law = procedural rules that govern conduct of a lawsuit in a particular court system, e.g. rules of evidence, civil, criminal procedure. I.e. when a case is in federal court, it follows the procedural rules of the federal court system. A federal court will follow those rules and will sometimes apply state procedural rules if they don't conflict with federal.
SO a forum state = where a lawsuit if brought or heard. It is important ans it determines which procedural rules apply to the lawsuit.
96
What are the 5 clearly substantive issues? (erie doctrine)
5 issues = clearly substantive:
1. Conflict (or choice) of law rules
2. Elements of a claim/defense
3. Statutes of limitations
4. Rules for tolling statutes of limitations; and
5. The standard for granting a new trial because the jury's damages award was excessive/inadequate
CESTN
Charlie Eat Some Turkey, Now!
Conflict/Elements of claim or defense/SoL/ tolling SoL/New trial inadequate or excessive damages
97
If it is determined that an issue is 'substantive' and so the state law rules on that issue apply,
When applying state X's substantive law (i.e. it has been decided that the issue in question is substantive and so the state law will apply), the federal court in the state will do whatever the state court in that state would do on 'substantive' issues.
So the federal judge must apply the forum state's conflict of law tules to determine which state law applies re the substantive matter (e.g. SoL).
Some states will call the substantive issue 'procedural', allowing the forum state to apply its own statute rather than that of another state.
98
What happens in an Erie question where there is no federal law on point and the issue is NOT one of the 5 substantive ones? What are the 3 tests?
The federal judge must detemrine whther the issue is 'substantive'. The law is very unclear. The Supreme Court has given 'tests' to apply:
Outcome Determinative: would applying/ignoring the state law affect the outcome of the case? If so = probably a substantive rule, so court should use state law.
Balance of interests: Does either the federal or state system has a strong interest in having its rile applied? The one with the greater interest should have its law applied?
Avoid forum shopping: if federal court ignores state law on this issue, will it cause people to flock to federal court? If so, court should apply state law.
99
If a court is NOT sitting in diversity and exercising FQJ, which law applies?
Federal law only! There is no need to examine the applicable state law.
100
VENUE AND JMOL
101
What clause binds states to ensure they give full effect to the judgment of courts in other states?
The Full Faith and Credit Clause
102
What is the difference between SMJ and venue?
SMJ is the power of the court to adjudicate the matter before it BUT venue relates to the proper geographic district in which to bring the action.
SMJ = question of power and authority, venue = q of geography.
SMJ CANNOT be conferred by agreement but venue can be.
Court can have SMJ without being a proper venue
103
Where are the 2 places that venue is proper?
1. Residential venue: a judicial district in which ALL D's reside
(reside = domicile)
2. Transactional venue: a judicial district in which a substantial part of the claim arose/a substantial part of the property involved in the suit is located.
(e.g. in a contract claim, substantial part might be where contract was entered into and where it was to be performed).
104
Explain the 'resides' requirement, how is it met? (venue) At which point does the requirement need to be met?
Someone resides in the federal district where they are domiciled.
You need to look at where they are domiciled at the TIME of the issue/accident.
To be domiciled, you need to be physically present + have intent to make that place your permanent home.
105
What if there is no district that satisfied residential and/or transactional venue?
A judicial district in which ANY D is subject to the court's personal jurisdiction with respect to the action will do.
106
Venue - what is D's all reside in different districts of the same state?
You may sue them in a district where any one of them resides.
107
Where does a corporation or unincorporated association 'reside' for the purposes of venue?
It resides in all districts where it is subject to personal jurisdiction.
108
If a D resides outside of the US, where is venue proper?
Any federal district court. BUT if another D does reside in the US, venue must be proper to her.
109
What is the venue for cases removed from state to federal court?
For removed cases, the venue is the federal district embracing the state court where the action was filled. Venue rules are for cases initially filed in federal court.
110
What are the categories of order that can be appealed, even when it is not a final judgment? (i.e. Interlocutory Appeals). Explain what each category encompasses.
1. Interlocutory appeals of injunctions as of right - orders granting/modifying or refusing preliminary or permanent injunctions are reviewable as of right despite the fact that the order may not be final. Does NOT include TROs.
2. Interlocutory appeals act - allows appeal of a nonfinal order if judge certifies that it involves a controlling issue of law, as to which there is substantial grounds for difference of opinion AND CoA agrees to hear it.
3. Collateral Order doctrine - appellate court has discretion to hear an appeal on an issue if that issue is:
- distinct from the merits of the case (i.e. separate and collateral to the main suit)
- involves an important legal question (too important to require deferring appellate review); and
- is essentially unreviewable if parties await a final judgment.
111
What 3 things does the collateral order doctrine require?
Under the collateral Order doctrine an appellate court has discretion to hear an appeal on an issue if that issue is:
- distinct from the merits of the case (i.e. separate and collateral to the main suit); AND
- involves an important legal question (too important to require deferring appellate review); AND
- is essentially unreviewable if parties await a final judgment
If the collateral order doctrine applies (i.e. all elements are satisfied), it allows for immediate review!
112
If an issue could be reviewed on a standard appeal after a final judgment, can the collateral order doctrine apply?
NO! The issue would need to be UNREVIEWABLE if the parties awaited final judgment.
113
TROs are excluded from interlocutory appeals but not always, when might they be appealed?
TROs are good for a max of 14 days.
IF it is renewed beyond 28 days it stops being a TRO but becomes a preliminary injunction that may be appealed.
114
What three things must a federal court have to properly hear an action?
1. Personal jurisdiction over the parties
2. SMJ
3. Be a proper venue for the case
115
When will a diversity case NOT be removable?
Diversity case is ONLY removable if NO D is a citizen of the state in which the action was brought. A forum defendant (a D who is a citizen of the forum state) may NOT remove an action from state to federal court.
When a case has been improperly removed to federal court, the P may move to remand back to state court.
A federal court is required to remand a case that was improperly removed.
116
When is an absentee party necessary/required? i.e. required joinder
- without the absentee, the court cannot accord complete relief among the existing parties (i.e. worried about multiple suits);
- absentee's interest may be harmed if she is not joined;
- the absentee claims an interest that subjects a party (usually the D) to a risk of multiple obligations.
Note - necessary means it is necessary to join the absentee party, if feasible. It does not mean that their presence is needed to continue with the case.
IF the court decides to dismiss rather than proceed without the absentee, the absentee is called 'indispensable'.
117
When is joinder of a required/necessary absentee feasible?
Feasible if:
- there is PJ over the absentee
- there will be federal SMJ over the claim by or against the absentee
IF feasible - absentee is joined to the case.
118
What happens if the necessary absentee cannot be joined? E.g. lack of PJ over them,
Court determines whether to proceed without absentee or dismiss the entire case.
Court looks at these factors:
- is there an alternative forum available? (a state court?)
- what is the actual likelihood of harm to the absentee? and
- can the court shape relief to avoid that harm to the absentee
IF the court decides to dismiss rather than proceed without the absentee, the absentee is called 'indispensable'.
119
What is an impleader claim?
= a third party claim.
Where a defending party (usually the D) is bringing in a new party.
Impleader claim is used to shift to the third party D the liability that the D will owe to the P.
SO if D is found liable to P, he will try to get the TPD to pay all or part of his own liability.
LOOK for claims with indemnity/contribution.
Indemnity - shifts liability completely
Contribution - shifts it pro-rata (TPD covers a pro-rate portion of the claim)
120
Is an impleader claim compulsory or permissive?
Permissive! The D need not bring it in the current case.
The ONLY compulsory claim = the compulsory counterclaim.
121
What is the process for impleading a third party defendant into the case?
D must:
1. file a third party complaint, naming the TPD
2. have that complaint formally served (like an original complaint), on the TPD
122
When does the right to implead arise and for how long? What happens after that point?
There is a right to implead within 14 days of serving the answer (i.e. D's answer).
After the 14 days is up, court permission will be needed.
123
Once a TPD is joined, may they assert claims against the P?
Yes! Once joined, the P may asset claims against the TPD and the TPD may asset claims against the P that arise from the same T/O as the underlying case.
BUT remember - all claims must be separately assess for meeting SMJ via diversity or FQ. IF neither works = supplemental jurisdiction.
124
How is a TPD different from a cross claim?
It is not a crossclaim as the TPD is NOT a co-party yet.
125
What is a crossclaim?
It is a claim against a coparty. It must arise from the same T/O as the underlying action.
It is not compulsory - it can be asserted in another case.
126
In a MBE question with a counterclaim, what do you need to look for?
LOOK for the TYPE of CC and whether it has jurisdictional basis!
Remember, a compulsory CC should always come in via supplemental jurisdiction because they, by definition, arise from the same T/O as the original claim.
127
What is a compulsory CC?
A counterclaim can be permissive or compulsory. If it is compulsory, it MUST be raised in the D's answer or he waives his right to it. A compulsory one arises out of the same subject matter as the P's claim against the D - same T/O.
128
What is a permissive CC?
A permissive CC does NOT arise out of the same subject matter. A D can exercise discretion to add any permissive counterclaim not considered compulsory. NO claim is too removed from the subject of the P's claim to be allowed as a permissive CC.
129
How do permissive CCs come in?
They are less likely to come in via supplemental jurisdiction because they may be entirely unrelated to the original claim and so did NOT arise out of a 'common nucleus of operative fact'.
SO the permissive CC MUST have an independent basis for SMJ - i.e. it must raise a FQ OR meet the diversity reqs (amount + diversity of citizenship).
SO REMEMBER:
- a permissive CC is LESS likely to come in via supplemental jurisdiction because they don't necessarily arise from the same T/O (like a compulsory CC does)
- SO a permissive CC must have an independent basis for SMJ - i.e. FQ or diversity jurisdiction
130
What must ALL CCs have?
They just have to have an INDEPENDENT JURISDICTIONAL BASIS. This means they MUST rest on either federal question or diversity jurisdiction.
BUT a compulsory CC might be able to come in via supplemental - arises under same T/O (unless it destroys diversity!).
131
Why will a compulsory counterclaim normally always be able to come in via supplemental jurisdiction?
They will usually come in via supplemental jurisdiction as SJ allows a federal court to hear unrelated claims w/o SMJ IF they arise out of a 'common nucleus of operative fact' and compulsory CC does!
But this may not apply if it destroys diversity between the parties (i.e the CC brings in another party who destroys diversity).
132
If a federal statue was the basis for a state law's language, can a P claim FQJ on the basis that the claim 'arises under' federal law?
No! The fact that the state used the federal statute as the basis for passing the law does not itself establish FQJ. This is not a case where the state law claim 'arises under' federal law. Although the legislative history of the state is rooted in federal law, the state law claim itself stands entirely alone.
IF no FQJ and no diversity, SMJ will not exist.
133
What two things must a federal court have to hear a case?
Personal and subject matter jurisdiction
134
When must the demand for a jury trial be made?
A party must demand the jury in writing no later than 14 days
after service of the last pleading addressing a jury triable
issue. If a party fails to do so, she waives the right to a jury. The
last pleading addressing a jury issue is usually the answer.
135
In the event that a defendant does NOT file an answer, when should a Plaintiff request a jury trial?
A party who wishes for a jury trial on a particular issue must file a demand within 14 days after the service of the last pleading directed to that issue.
In the event that the D does not file an answer, the last pleading related to the issues that the P is requesting a jury for has NOT been served and so the 14 day deadline has not been missed and they can still demand a jury.
The P can amend their complaint and request a jury trial. The D did not answer the complain and so the last pleading on the issue has not been served. 14 day window to request a jury trial begins once the D answers the complaint.
136
Which amendment guarantees the right to a jury trial?
7th Amendment guarantees the right to a jury trial.
137
What is a directed verdict in a federal court?
= a motion for judgment as a matter of law, JMOL. It takes the case away from the jury and determines the outcome as a matter of law.
138
When can a party make a motion for directed verdict/JMOL?
When the other party has been fully heard on the issue. I.e. the D may move for directed verdict at the close of the P's case, and either party may move for a directed verdict after the close of the D's case.
139
What is the standard for granting a directed verdict/JMOL?
If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would NOT have legally sufficient evidentiary basis to find for that party on that issue, the court may:
(i) resolve the issue against that party; AND
(ii) grant a motion for a JMOL against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
SO standard for granting a JMOL motion = reasonable people could not disagree.
140
What happens if the court does not grant JMOL?
The court is considered to have submitted the action to the jury.
141
In assessing whether to grant JMOL, how must the court view the evidence?
In the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party,
142
How a re JMOL and summary judgment similar and different?
JMOL is like summary judgment where there was no dispute of material fact. BUT JMOL comes up AT trial instead of before trial.
Like SJ, the court views the evidence in the light most favorable to the NON-MOVING party.
143
Can a motion for JMOL be combined with a motion for a new trial? What order must they be decided and how?
Yes, you can combine a motion for JMOL and a motion for a new trial.
If the judge grants the motion for JMOL, the judge must also rule conditionally on the new trial motion.
Later, if the JMOL is reversed on appeal, the new trial will then occur automatically unless the appeals court specifies otherwise.
144
What is RJMOL?
An RJMOL is the same as a JMOL, but it comes up AFTER
trial.
If an RJMOL is granted, the court enters judgment for the party that lost the jury verdict. (i.e. judgment is taken from one party and given to the other)
As with a JMOL, the court views the evidence in the light most favorable to the non-moving party.
145
What MUST a party have done in order to bring a RJMOL motion?
The party MUST have moved for JMOL at the proper time at trial. Failure to do so waives RJMOL.
AND the RJMOL motion must be based upon the same grounds as the JMOL motion.
146
When must RJMOL motion be made by?
Within 28 days after entry of judgement.
147
What is a motion for a new trial? When is there grounds for one?
It is a do-over! A judgment is entered but a (non-harmless) error at trial requires the parties to start over and have a new trial.
148
What are some examples as to why a motion for a new trial might be granted?
- The judge gave an erroneous jury instruction
- new evidence was discovered that could not have been discovered before with DD
- Misconduct was committed by a juror, party or lawyer etc.
- The judgement is against the weight of the evidence (serious error of judgment); and
- Damages are inadequate or excessive
149
Why is a new trial a less drastic remedy than ordering RJMOL?
A new trial results on starting over so the same party may still win.
RJMOL results in taking judgment away from one party and giving it to another.
150
When/why is remittur and additur used?
To avoid a new trial.
Remittur and additur is used when the jury's damages figure is excessive or inadequate.
151
What is remittur?
Jury's compensatory damages are so excessive as to 'shock the conscience' (OR in a diversity case - if the award meets the state standard for excessiveness).
Court offers the P a choice: remit part of the damages award or go through a new trial.
Court CANNOT simply lower the amount as would violate the 7th Amendment - must give P the choice of accepting lower amount or going through new trial.
152
What is additur?
Used when judge believed jury's compensatory damages = INADEQUATE.
Additur is NOT permitted in federal court as violates 7th amendment. IS allowed in state court.
Gives D a choice - ADD to the damage award or go through a new trial.
153
What is the standard used for remittur and additur?
Whether the damages figure 'shocks the conscience'.
154
What must a party moving for summary judgment show?
- there is no genuine dispute on a material fact
- she in entitled to judgment as a matter of law
155
Who can move for summary judgment and when?
Any party can move for SJ, NO later than 30 days after the close of discovery.
156
What matters are considered when deciding re summary judgment? In which light is the evidence looked at?
The court looks at evidence. The court views the evidence in the light most favorable to the nonmoving party.
Parties proffer the evidence, ususally:
1. affidavits
2. declarations
3. deposition testimony
4. interrogatory answers
These things = considered evidence because they are UNDER OATH.
157
When and why is SJ used?
After the case has been filed and the P has survived an y Rule 12 motions.
In litigation stream but trial might not be needed - SJ weeds out cases in which no trial is necessary.
ONLY reason to. have a trial - to resolve a dispute of material fact.
