Civil Procedure Flashcards

Question

Gunn ## Footnote does not meet embedded federal issue in state law claim

Answer 1

1. Patent infrigement but loses and then sues for attorney malpractice (state law claim) 2. there are essential fed ingredients - attorney messed up federal patent case 3. and he meets mottley WPC as well, he cant win without patent part 4. Actually disputed? yes both parties will argue 5. substantial? NO! this is substantial to this case, but not to the fed system of the whole, not a pure question of law that will set precedent, will only resolve attorney malpractice 6. nondisruptive? NO, a bunch of attorney malpractice cases will be thrown into fed court, regulation of attorneys belong to the state

Answer 2

1. when a claim not eligible for FQ and DJ is joined with a claim that is eligible (anchor) 2. does claim meet DJ or FQ? yes, court keeps 3. is the claim related to the anchor claim? no, dismiss 4. Exception: is anchor based solely on DJ AND plaintiff side AND under R14, R20, R24? yes to all? exclude, dismiss 5. All surviving, under court's discretion

Answer 3

1. Lack of SMJ 2. violation of Forum defendant rule 3. untimeliness of removal or like unanimity rule

Answer 4

1. each defendant gets 30 day period to remove (subject to consent if multiple defendants) -- when the case becomes removable (typically at time of complaint service) but for example Forum defendant rule may stop removable 2. one year bar for DJ that begins at date of original complaint (with exception of bad faith) 3. Forum defendant rule = if based on DJ may be removed only if no defendant is a citizen of the state in which the case is filed 4. removal is based on WPC rule, only original matters no supplemental

Answer 5

1. a remand motion for any ground other than lack of SMJ to be made within 30 days 2. cannot appeal remand

Answer 6

1. short and plain statement of jurisdiction 2. Demand for relief 3. can plead in the alternative or inconsistently 4. Fraud must be pleaded with particularity = who what when where why

Answer 7

1. must be legally sufficient 2. must give fair notice of the claim and grounds upon which it rests = does the defendant know how to respond to this claim? ## Footnote 1) I cant sue you for being bald 2) you harmed me - how do i respond to this dude?

Answer 8

1. Must be factually sufficient 2. Disregard all conclusory allegations 3. assess remaining factual allegations to determine if they state a plausible claim for relief. = taking them as true 4. assessment based on judicial experience and comon sense ## Footnote a conclusory allegation is one without direct support for and instead is an inference asked to be drawn from the other allegations in the complaint take into considerations other possibilities

Answer 9

1. plaintiff's obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do 2. Parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality

Answer 10

1. Allegations are conclusory and not entitled to be assumed true; discrimination is not a plausible conclusion 2. Respondents’ complaint does not contain any factual allegations sufficient to plausibly suggest the petitioners’ discriminatory State of Mind

Answer 11

1. compliance with rule 4 2. party cannot serve and person who serves must be over 18 3. summons and complaint (process) served within 90 days of filing (extendable) 4. prove service by an affadavit from service processor

Answer 12

1. by state law 2. in-hand tag service 3. leave at dwelling with suitable resident 4. serve an agent designated to receive service 5. Business = state law or officer/agent appointed to receive service

Answer 13

1. serve summons complaint and 2 copies of waiver form using reliable means 2. 30 days to respond 3. if D waives, get 60 days to respond (standard is 21) 4. if D fails, without good cause, to sign and return a waiver, cost shifting for service ## Footnote very carrot and stick vibe here dont forget about R5 easy service good cause = somehow missed email (spam folder) waiving service does not waive PJ

Answer 14

1. within 21 days after service (60 days after waiver) 2. can be extended from asking party or court if party is denies 3. MTD denied (fully or in part) = 14 days (adjustable) ## Footnote these are defaults

Answer 15

General denial - never do this, if you get something (even small) wrong, you are deemed to admit everything What to do: Admit what is true, deny the rest. you can admit in your own words too. (give your own characterization) if you fail to deny an allegation, you are deemed to have admitted to it at the end, say: the def denies the remaining allegations in this paragraph you must also list any affirmative defenses in your answer, if you do not, they are not apart of the lawsuit.

Answer 16

1. Lack of SMJ 2. Lack of PJ 3. Insufficient process 4. Insufficient service of process 5. Failure to state claim upon which relief can be granted | you fill file R12 MTD on multi grounds 1,2,3,4 ## Footnote 1) PJ and service defenses (2,3,4) must be raised in the first response or are waived throughout the whole case 2) Can raise multiple of these, but only one pre-answer MTD = no successive R12 MTD

Answer 17

1. Motion for judgment on the pleadings = SoL run out just motion this and win 2. Motion for a more definite statement 3. Motion to strike for scandalous and irrelevant material

Answer 18

once within 21 days after service of complaint/answer Or within 21 days after service of responsive pleading or motion under R12, whichever is first After 21 days With party’s consent or court’s leave when justice so requires Unless unfair prejudice to other party or bad faith on party seeking amendment Bad faith, repeated opportunities to amend, undue prejudice

Answer 19

Parties can give consent to opposing party to amend and include issues not raised in pleading. Opposing counsel can object, but shouldn’t bc judge will likely grant “justice so freely requires”

Answer 20

any amendmet will generally be a disadvantage but that is not prejudice. prejudice means now there is some inability of the opposing party to pursue its case (usually some evidentiary disadvantage) classic example: nonmoving party has some evidence for an issue that was not raised in the original pleading. The nonmoving party deletes it, then the moving party wants to amend it back in. AND now the nonmoving party is at an disadvantage. Could also be a witness in a similar situation. outside of this: no prejudice district judge has alot of discretion.

Answer 21

Relation Back: R15(c) An amendment to a pleading relates back to the date of the original pleading -- When case filed before SOL, then runs out and P aspires to amend complaint as if it were before SOL ran. 3 ways it allows: 1) Statute allows it 2) If it is related -- only when changing a claim or defense

Answer 22

if you wanna add a new party -- R15(c)(1)(C) must be related and within 90 days from original complaint filed and new defendant knew of the action and knew or should have known it was the proper defendant but for some identity mistake on part of the plaintiff **Costa Croceire** is a good case for this ## Footnote if these, then relate back

Answer 23

1. Signature requirement: is a good-faith affirmation of no bad faith: delay, cost, harrassment 2. Substantive Standard 3. Facts and legal contentions must have (or believed will have) evidentiary or legal support (just need some basis) 4. sanctions can be fines, fee shifting, or nonmonetary 5. Courts can issue show-cause order (a notice and chance to explain) sua sponte or parties can move for it 6. Parties moving for sanctions must serve without filing for 21 days (safe harbor) and must be stand-alone (R5) 7. Khan: judges have a lot of discretion in this ## Footnote some basis = at least one

Answer 24

Governs joinder of claims among existing parties to a claim Will allow unrelated claims if there is one related claim (tag-along claims) permissive - maybe she doesnt like forum must have independant SMJ this also is what allows aggregation of AiC in DJ

Answer 25

all counterclaims are allowed. (so R18 wont matter) Rule 13(a): a **related** counterclaim is compulsory: use it or lose it! a related counterclaim will almost always have SMJ Rule 13(b): an **unrelated** counterclaim is permissive ## Footnote why are related counterclaims compulsory? duplicative efforts, same issues litigated twice, inefficient

Answer 26

Counterclaims it can hurt you because of the compulsory v. permissive If you really hate the forum: take the risk and go assert it at the different forum knowing that, if they deem it related, you might lose it. Don't care about the plaintiff's choice of forum? Just assert it because you love your claim.

Answer 27

Only permissive cross-claims Must be Related no unrelated crossclaims unless . . . R18a!! ## Footnote relatedness test wont matter here

Answer 28

1. any logical connection between the two = related (liberal/broad) 2. Factors: same witnesses, same parties, same transaction or occurance, same insurer, same evidence ## Footnote common sense

Answer 29

Rule 20: parties MAY be joined if their claims are related AND feature a common question of law or fact of all parties A wants to sue B and C A v. B & C ## Footnote Permissive R21: Misjoinder if party = drop a party if R20 bad = wont dismiss entire lawsuit

Answer 30

Plaintiffs join together? Cheaper to sue together, put pressure on defendant to induce settlement, optically it looks better with more litigants, mask weaker claims with stronger claims, join evidence, attract better attorneys Some reasons not to: you have strongest claim and dont want weaker ones joining, preference for forums, personality conflicts, attorneys might not get along. What about joining defendant's efficient to sue D's together, simplicity of discovery, dont know which defendant cause issue = those defendant's figure it out you dont want to join a rich defendant with a poor defendant

Answer 31

Court has no discretion--intervener must be let in only--done through interveners motion When statutory right (typically gov't and constitution issue-- will intervene on side which will allow law to be upheld) Intervener’s interest will be impaired, and no party adequately will represent their interest

Answer 32

When statutory or Claim or defense that shared a common question of law or fact (makes you eligible) Court has discretion to allow intervention; court must consider delay/prejudice to original parties’ rights

Answer 33

Rule 14: a Defending Party MAY bring in a third party who may be liable for some/all of any judgment against D needs to be served process pursuant to R4 defending party has 14 days to implead as a matter of right, after you need the court's leave (freely given) Look for insurance, indemnification, contribution but only for og defender, the rest can be claim joinder 3rd party treated as new defendant = R12 MTD, can counterclaim (compulsory, permissive), crossclaims 3rd party can assert **related** claims against plaintiff can assert any defenses that og defendant can assert, because they might not wanna defend, even if waived plaintiff MAY assert **related** claims against 3rd party ## Footnote can re-implead as well plaintiff can implead to as long as subject to counter must be served under R4

Answer 34

b(2): Class directed conduct (like discrimination); only injunctive/declaratory relief, which is non-monetary relief b(3): Catch-all that requires Predominance of common issue: Common questions must predominate over individual issues Superiority of the class action over individual actions = Must be superior to other available methods fairly and efficiently adjudicating the controversy Reasonable Notice and right to opt out (b)(2) class doesn’t require notice and there is no way to opt out (since the action is class-conduct based) ## Footnote b2 = you are affecting a class as a whole

Answer 35

Numerosity (too many members for joinder to be practical) Less than 10 unlikely, More than 50 likely Commonality (at least one question of law or fact uniting the class) Typicality (rep’s legal issues must be typical of class) Adequacy (rep will fairly represent the members) | court decides if met ## Footnote typicality -- think the rep's claim running out of SoL and class isnt

Answer 36

Court must approve/appoint class counsel- Rule 23(g) Court must **certify** class, which it does in an order that defines the class and appoints counsel--it can also decertify if later it decides it does not meet class requirements No settlement without court approval that it’s fair, reasonable, and adequate For (b)(3) class, must give notice of settlement offer which class members can object to or opt out litigate individually = must give reasonable notice ## Footnote no notice and opt out for b2 DJ look only at named representatives PJ no min contacts analysis

Answer 37

Gender discrimination (b)(2) class action case; SCOTUS = found no commonality commonality means that there must be a common question uniting the class on which LIABILITY DEPENDS and not pleading standards, we need significant proof of commonality One rule from the case: significant monetary demands for a (b)(2) cannot happen --> has to be a (b)(3) class if asking for monetary damages

Answer 38

Parties come together and talk about the case will discuss case (issues or troubles that may arise) how much managerial authority a judge will use will depend on the case and the judge Purpose: make sure that case proceeds quick and without trouble judge can dismiss claims that have not been emphasized by the plaintiff here and cut the fat there will be a final pretrial conference before trial begins where everyone goes over what will be held at trial ## Footnote there will be a final pretrial conference where parties show all the cards

Answer 39

Answer filed, pleadings closed, time to meet the judge! here, you will get your scheduling form (set trial date and other default deadlines--which are flexible)--these are court orders and violating them will subject you to R16(f) sanctions Gives court broad discretion to manage cases All crt orders Helps streamline cases There’s a preference for settling cases

Answer 40

1. Mediation (negotiation with a third party mediator) 2. settlement (negotiated dispute being resolved) 3. Arbitration - cant force unless contractual obligation -- private judges -- supposed to be easy, streamlined ## Footnote Concepcion - class action waiver is ok in arbitration

Answer 41

1. Def makes offer 2. Plaintiff accepts = written acceptance 14 days = done 3. Plaintiff declines or is untimely AND plaintiff wins but less than offer of judgment = cost shifting ## Footnote plaintiff must pay D's litigation costs since date of offer evidence of unaccepted offers are inadmissable

Answer 42

1. first thing in scheduling order 2. very collaborative 3. everyone figures out what they want in discovery, give me 10 depos! do you want everything in pdfs? 4. all discovery is continuance-able, typically 30 days 5. talk about any issues of privlege 6. if documents heavy, but can clawback and make them destroy it for inadverdant disclosure

Answer 43

1. relevant 2. non-privileged 3. proportional = most fighting ## Footnote work product is privileged you can discovery from third parties but you need subpoena

Answer 44

1. importance in resolving issues 2. too expensive to produce for a case that might product a less amount 3. party's relative access to information 4. party's resources 5. burden outweigh benefit? ## Footnote trade secrets are not privileged, it depends, you wont get coke secret formula

Answer 45

Confidentiality orders = cannot use this info anywhere else other than this litigation, alleviate alot of burdens. Ex) privacy protection, can be lawyer eyes only Cost shifting Limiting discovery Staging discovery - order and delay most burdensome sample discovery Redacting private, sensitive info that is less relevant Other creative solutions ## Footnote if there it is something really bad for your client, settle lol you must produce

Answer 46

Duplicative or cumulative I object! it's all publicly available on the internet! Why should I spend money looking for it! Just do a google search. Could be obtained by easier or cheaper means Already had ample opportunity to ask for it You can't depose my client for a third time! You've had ample opportunity to get what you want! This is burdensome.

Answer 47

WPP protects: Documents, tangible things, oral statements **Created in anticipation of litigation By a party or party’s representatives** **“zone of confidence”** Included on a privilege log 2 types of WPP: (1) Fact work product Can be discoverable upon showing of substantial need and undue hardship Note: testifying expert falls under fact work product and is discoverable (2) Core work product Never discoverable **It’s facts + conclusions, atty impressions/legal conclusions** Note: **consulting** expert falls under core work product if they add expertise ## Footnote both for ACP and WPP, once a homie becomes not a homie, it becomes waived also once you decide to use it at trial = waived WPP does not have to involve attorney, just in anticipation of litigation by a party or party representative so ex) a company does recording after plane crash, is this for litigation or for something else? this is what it hinges on.

Answer 48

1. facts are not protected, what the survivors have to say is not protected because other side got their first, plaintiff go interview them 2. efforts are protected 3. fact work product has an exception = substantial need and undue hardship - if they died 4. does not have to be an attorney for workproduct can be a party, expert, etc = make them depose you, but if you cant remember, might creat substantial need ## Footnote for an expert = if they testify then not work product if not = protected once you designate testifying expert, all of it is waived

Answer 49

**communication between attorney and client and is it for purposes of legal advice** (these are the elements) ACP: · Included on a privilege log Note: ACP attaches when there is an interest of representation o Anything you say in the zone of confidence relating to litigation is covered but it is waived if shared outside zone o Claw back clause: if accidently send communications over, you can get them back if at the start of discovery both sides agree to a claw back clause Note: ACP is waived if attorney becomes adversarial party in a litigation · A + A ≠ ACP (it’s WPP) · Just like WPP, facts ≠ protected, communications are · ACP can apply to corporations ## Footnote gray area here is when it is a firm upjohn = high level people are ACP, also employees not highlevel when actions that bind the company walmart store managers does discrim and it becomes protected. so if it binds the company, opposing counsel go interview yourself! the test = speaking as the company

Answer 50

1. always will be asked for, so just release it as a matter of course 2. identify persons that will have discoverable info that will help your case, no obligation to baddies 3. describe documents that you will have that will help your case 4. Plaintiff = computation of damages 5. defendant = any insurance agreement that will cover liability ## Footnote name and address and "likely to have useful info about that night"

Answer 51

1. depositions by written questions = very simple testimoney 2. Request for examination = for a party, under court order, for good cause = physical injury, mental health

Answer 52

1. written Q's to other party answered by their attornies 2. 25 including subparts 3. 30 days 4. responding party has a duty to investigate

Answer 53

1. client will get the docs and then you review them for discovery scope things 2. docs, meta data, deleted docs 3. when you request: must reasonably describe them, must be in possession or control (doc holding stuff counts), 4. produce as in kept in ordinary course of business or as requested 5. allow for inspection, have fun!

Answer 54

1. no default limits for number 2. other side will admit deny or insufficient info 3. very narrow 4. not for nonparties 5. used to streamline 6. and identifying areas of agreement or disagreement 7. very easy to amend and nearly whenever

Answer 55

1. most useful 2. send notice of depo 3. default: 10 max and 7 hours max 4. ask everything and finish with "anything else" 5. opposing will say objection or else waived to object 6. afterwards deponent can review and change anything = yes to no 7. your client = answer the questions the most autistic way you can = example: do you know bob? yes ## Footnote R30

Answer 56

If disagreement on discovery then have meet & confer; 3 results Requesting party gives in, objector wins Objector keeps objection and files a motion for a protective order Objector keeps objection and files a motion to compel (MTC) MTC: whoever loses MTC had to pay fee and costs to the other side in having to make that motion, except if loser was substantially justified in objecting More severe sanctions for failure to comply w/ crt order Ex: Poole v. Textron ## Footnote adverse inference = failure to provide after MTC = taken as true striking pleadings - cant use defense dismissed default judgment

Answer 57

1. do not destruct evidence 2. as soon as you guys have decided to work together 3. includes basically everything

Answer 58

Rule 41(a): Voluntary Dismissal R41(a)(1) P can dismiss w/out a crt order by (a) filing a notice of dismissal before D serves either an answer or a motion for summary judgement OR as a stipulation signed by all parties (early in the case: before an answer but settlment anytime) (b) unless the notice or stipulation says otherwise, dismissal is WITHOUT prejudice. But if P previously dismissed any fed/state action on/including the same claim, a notice of dismissal IS WITH prejudice (operates as an adjudication on the merits) Tldr: successive dismissals will operate as an adjudication on the merits aka with prejudice (2) by court order Crt order dismissals on terms crt considers proper Unless otherwise stated, dismissal is WITHOUT prejudice

Answer 59

If P fails to prosecute or comply w/crt orders, a D may move to dismiss the action/any claim against it Unless order states otherwise, a dismissal under this subsection (except for lack of jdx) is WITH prejudice and operates as an adjudication on the merits ## Footnote flip side of default judgment plaintiff gave up it is a forfeit

Answer 60

Step 1: get default entered by clerk; Step 2: go after default judgement Default: party hasn’t shown up Default --> default judgement (≠ based on merits, but more factual/administrative) Rule 55(a): Default when D has failed to plead or otherwise defend (w/motion or ans), and that failure is shown by affidavit or otherwise (can be P atty saying s/he hasn’t been served with docs or extensions), clerk must enter the party’s default **(finding that D has given up)** Rule 55(b): Default Judgement (1) by clerk- if P’s claim is for sum certain or sum that can be made by computation, clerk must enter judgement for that amount (2) by court- if no sum certain, crt will hold a hearing to determine appropriate money and will give D at least a 7-day written notice about the hearing Rule 55(c): Crt can also set aside default and default judgement for good cause Ex: Colleton Prep Academy v. Hoover Universal Note: delay ≠ prejudice (need more than that)

Answer 61

Motion can be made by either party, and be made on part of a case or part of a claim Rule 56: **Crt shall grant if movant shows there is “no genuine dispute as to any material fact”** o Genuine dispute: one in which a reasonable jury could disagree o Material fact: one that is essential to the claim Motion can be made at any time up to 30 days after close of discovery, unless otherwise stated **Discovery on that issue MUST be done since MSJ is based on facts/evidence, not pleadings** § Only admissible evidence will be considered in MSJ ## Footnote it is a prediction of the jury!

Answer 62

Court will weigh the evidence in the light most favorable to the non-movant if the party who bears the burden (typically plainitiff) is making the MSJ, it’s very hard for the motion to be granted because we do not know how jury will react 1. defendant MSJ & affadavits, plaintiff opp & affadavit, Def reply 2. did the defendant meet initial MSJ burden? 3. no = trial 4. Yes = did plaintiff add evidence to create genuine dispute? 5. no = grant MSJ 6. yes = MSJ denied = trial

Answer 63

The motion is accompanied by the defendant’s own affirmative evidence that tends to reject or negate or deny the plaintiff’s claim Very difficult to win because we do not know what the jury will do with that evidence (will they believe or not?) ## Footnote Adickes

Answer 64

Def: “Judge, the plaintiff has the burden of proof to prove the case by a preponderance of the evidence. Please look at the record of discovery. As you may see, the plaintiff has zero evidence on one of the essential elements of the plaintiff’s claim. SO plaintiff has no evidence. So if i am correct, the plaintiff cannot mathematically win.” Def does not come up with his own affirmative evidence disproving the plaintiff’s claim, he just points to the record and says the plaintiff has zero. ## Footnote A good defendant will do both affirmative and no evidence. celotex

Answer 65

Anderson: Substantive evidentiary standard of proof at trial is that which should be used in MSJ analysis—if clear and convincing, use that. MSJ incorporates substantive burden at trial. Matsushita: This case stands for the proposition that when the substantive law specifies a certain weight that must be given to evidence, the weight of it is relevant to the analysis of SJ

Answer 66

Rule 38(b): right to trial by a jury may be demanded by serving the other party with a written demand no later than 14 days after the last pleading directed to the issue is served In practice, usually just included on the pleadings (complaint and answer) ----> MUST be demanded to be preserved + it can be waived later ## Footnote no preemptory challenges on racial discrimination must be unanimous

Answer 67

Questions of Law (judge) - if an issue would be more appropriately looked at by judge based on history, pragmatic, or logical reasoning (Markman- dry cleaning) Functional test: who would be better at interpreting the term inventory in a patent; a group of normal people or a judge? SCOTUS reasons a judge will be better at patents because they are pretty technical, written by lawyers, judges have seen patents a lot more often so better for a judge Having a uniform interpretation of the scope of a patent is really important, instead of having a jury re-litigate this many times over THIS IS THE TEST WE USE IN GRAY AREAS Better for jury or judge? Precedent? Another ex) what should be obscene be in 1st amendment? The term obscene depends based on the community norms, so let jury do it. Questions of Fact - jury (Reeves-age discrimination)

Answer 68

1. May be made after nonmovant has been completely heard on a claim, defense, or issue at trial 2. **Looking at what has been introduced in trial for the jury**, is there any way that a rational jury could find for the nonmovant based on this subset of evidence? 3. can be made any time before case is submitted to jury 4. JMOL can be made pre-verdict (“directed verdict”) under R50(a). A pre-verdict JMOL can be renewed within 28 days after the verdict (“JNOV”) under R50(b). 5. The 7th amendment bars post-verdict JMOLs that were not moved for pre-verdict ## Footnote Same standard as MSJ

Answer 69

1. Motion or sua sponte notice **must** be made within 28 days of judgment 2. kinds of errors: 3. harmless error = no new trial 3. errors where we are unconfident about the verdict = new trial ## Footnote 28 day not extendable judge can decide sua sponte but timely also can do it for any reason even if not brought up by parties

Answer 70

1. Mistake by judge that is not harmless = overruling something he should not have 2. Juror misconduct or impartiality 3. verdict against the great weight of evidence

Answer 71

1. cant be that judge disagrees with jury 2. it has to be that judge thinks that the jury verdict represents a serious error in judgment or in understanding the evidence = must consider cost and expense of new trial ## Footnote up to judge discretion no new trial if already one new trial and comes out same JNOV = so against the evidence that jury reached wrong verdict as a matter of law here its more like we think the jury may have made a mistake

Answer 72

1. Remittiter: new trial granted for damages unless plaintiff agree w/ judge for lesser amount Jury awarded more damages than the evidence otherwise would support Wont violate 7th amendment 2. Addititer: plaintiff should be offered alot of money, jury gives little money Unconstitutional, violates 7th, because no jury has approved the greater amount

Answer 73

1. R60a = clerical error: will be corrected and receive amended judgment 2. R60b = Relief from final judgement

Answer 74

1. mistake of law, surprise, excusable neglect 2. newly discovered evidence 3. fraud 4. void judgement (Lack of SMJ) 5. Catch all for 1, 2, 3 = one year bar be prompt and diligent for all this ## Footnote catch all = if it is the person's fault, then no

Answer 75

use state law use FRCP use the rule of where the case was filed

Civil Procedure Flashcards

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