Civil Procedure Flashcards
(197 cards)
1
Q
What must happen for a court to hear a case?
A
- Court has SMJ
- Court has PJ
- Venue is proper
2
Q
What type of SMJ do state courts have?
A
- General SMJ
- Can hear any case, including those involving federal law
- Cannot hear: patent infringement, bankruptcy, some federal securities and antitrust claims
3
Q
What type of SMJ do federal courts have?
A
- Limited SMJ
- Can only hear cases permitted by federal statutes or US Constitution
- Cannot hear: divorce, alimony, child custody, probate of estate
4
Q
What are the bases for SMJ?
A
- Federal question jurisdiction
- Diversity jurisdiction
- Supplemental jurisdiction
5
Q
Federal Question Jurisdiction
A
- Case arises under a federal statute, treaty, or the US Constitution
- Federal question must be raised in P’s well-pleaded complaint, rather than in P’s answer or in anticipation of a federal defense
- Test: is P enforcing a federal right?
6
Q
What are the requirements for diversity jurisdiction?
A
- Complete diversity of citizenship
- Amount in controversy >$75k
7
Q
Diversity jurisdiction
Amount in controversy
A
- Amount must be a good faith allegation
- To overcome, D must show P cannot recover <$75k to a legal certainty (e.g. law states that punitive damages cannot be recovered)
- Does not include defenses, counterclaims, or prejudgment interests unless interest is part of claim
- Amount P actually recovers is not relevant
8
Q
Diversity jurisdiction
How do you measure amount in controversy when P is seeking equitable relief?
A
Look to see if:
* Value of relief to P is greater than $75k, or
* Cost of relief to D is greater than $75k
9
Q
Diversity jurisdiction
Complete diversity of citizenship
A
- No P is a citizen of the same state as any D
- DC and territories are treated as states
10
Q
Diversity jurisdiction
Alienage
A
- Diversity of citizenship satisfied if controversy is between a US citizen and a foreign citizen
- Green card holders are treated as foreign citizens
11
Q
Diversity jurisdiction
When is citizenship determined?
A
- At the time lawsuit was filed
- Does not matter if party moves after filing of lawsuit
- Genuine change of citizenship prior to filing lawsuit valid even if motive was to affect diversity
12
Q
Diversity jurisdiction
Individual citizenship
A
- Domicile: physically present in the state with the intent to remain permanently
- Do not lose domicile until receive a new one
13
Q
Diversity jurisdiction
Corporation citizenship
A
- Place of incorporation and/or principal place of business
- Principal place of business: where corporation managers direct, coordinate, or control business
14
Q
Diversity jurisdiction
Citizenship of unincorporated business
A
- Takes on citizenships of all members, including general and limited partners
- Possible to be citizen of all 50 states
15
Q
Diversity jurisdiction
Citizenship of minor, decedent, or incompetent
A
Representative takes on represented person’s citizenship
16
Q
Diversity jurisdiction
What will the court do if a party attempts to create diversity jurisdiction?
A
Ignore that transaction
17
Q
If no SMJ at time of filing, is removal permitted if non-diverse parties are dismissed?
A
Yes, if done within 1 year of filing lawsuit and if amount in controversy satisfied
18
Q
Supplemental jurisdiction
A
If court has jurisdiction over original claim, it has supplemental jurisdiction over all related claims arising from a common nucleus of operative fact
19
Q
What is an exception to supplemental jurisdiction?
A
- P cannot join claims based on supplemental jurisdiction in diversity cases
- Exception: can use supplemental jurisdiction join another P’s claim in a diversity case which alone does not meet amount in controversy requirements
20
Q
Does the court have discretion over exercising supplemental jurisdiction?
A
Court has discretion to decline supplemental jurisdiction, considering if:
* State law claim is complex
* State law claims predominate in federal question case
* Claim over which court had original SMJ has been dismissed
21
Q
Diversity jurisdiction
Calculating amount in controversy
A
- P v. D: add claims even if unrelated
- P v. Ds: cannot add and P must meet minimum for each D
- Ps v. D: cannot add unless claims arise from same transaction or occurrence and at least one P satisfies minimum
22
Q
Removal
A
- State court –> federal court
- Only D can remove, P cannot remove under any circumstances
- All Ds must agree to removal
- Federal court must have SMJ
- If removal improper, court will remand to state court
23
Q
What is the procedure to remove a case to federal court?
A
- D files notice of removal in federal court, state court’s permission not required
- D serves copy of notice on adverse parties and files copy of notice in state court
24
Q
What is the timing to remove a case to federal court?
A
- D must remove within 30 days of being served with paper that shows the case is removable
- If one D served before the other, D1 may join removal of D2 even if D1’s removal period has expired
25
What are the limitations on removal for cases based on diversity jurisdiction?
* Home forum defendant rule: diversity case may not be removed if any D is a citizen of the forum state
* Case becomes removable when the home forum D is voluntarily dismissed by P within 1 year of filing case in state court (time limit does not apply if D joined to prevent removal)
* Does not apply in federal question cases
26
What is the timing for P to remand?
Must move to remand within 30 days of D filing notice of removal with federal court if defect is based on anything other than lack of SMJ
27
What are the types of venues?
* Residential venue
* Transactional venue
28
Residential venue
"Reside" = domicile
Businesses reside in all districts in which subject to PJ with respect to case in question
Venue is proper in district in which D resides
* If Ds reside in different states, residential venue is not available
* If Ds reside in same state, P may file in any district court in that state
29
Transactional Venue
P may file in district court in which:
1. Substantial part of the claim arose, or
2. Substantial part of property involved is located
30
What is the proper venue went Ds reside outside US?
Venue proper in any federal district
31
What is the proper venue when no residential or transactional venue exists?
Proper venue is any district in which any D is subject to PJ
32
Forum non conveniens
* Federal court may stay or dismiss case to be refiled in more convenient forum which is not a federal court (e.g. foreign court, state court)
* Court considers public and private interest factors
* Forum must be adequate, usually found adequate unless no available remedy for P
33
# Forum non conveniens
Transfer Factors
Private interest:
* Whether claim arose elsewhere
* Burden on parties and witnesses
* Access to sources of evidence
* Existence of forum selection clause
Public interest:
* Court's familiarity with laws
* Congestion of courts
* Local interest in deciding case
34
Transferring venue
* District court may transfer case to another federal court so long as venue is proper and has PJ over D
* D cannot waive proper venue and PJ requirements
35
# Venue
Transfer statute: original venue proper
If original venue proper, court may transfer to another proper venue based on convenience to parties and in interests of justice
* Forum non conveniens factors apply
* Transferee applies choice of law rules of transferor
36
# Venue
Transfer statute: original venue improper
If original venue improper, court may transer to proper district in interests of justice or dismiss the case
* If diversity case transferred, transferee uses its own choice of law rules
37
# Venue transfer
Forum selection clause
* If lawsuit filed in violation of forum selection clause, D may enforce through motion to transfer
* Federal courts will enforce if not unreasonable, unless public interest factors say otherwise
* Transferee applies its own choice of law rules
38
What are the bases for personal jurisdiction?
1. Consent
2. Specific PJ
3. General PJ
39
# Personal jurisdiction
Consent
* P automatically consents to PJ when file lawsuit
* D consents through waiver if fails to challenge PJ
* P and D may consent through forum selection cause
40
# Specific personal jurisdiction
*International Shoe* test steps
1. Does D fall under the state's long-arm statute?
2. If yes, did D purposefully avail themself of state's protections and privileges and was it reasonably foreseeable that their activities could cause them to be haled into that state's court?
3. If yes, does P's claim arise from or relate to D's contact with the forum state?
4. If yes, consider fairness factors.
41
# Specific personal jurisdiction
*International Shoe* test overview
Does D fall under the state’s long-arm statute?
If so, does D have sufficient minimum contacts with the forum state such that exercising jurisdiction does not offend traditional notions of fair play and substantial justice? (contact, relatedness, fairness)
42
# Specific personal jurisdiction
Purposeful availment
* D voluntarily reached out to the state
* P's claim arises from or relates to D's contact with state
43
# Specific personal jurisdiction
*International Shoe* fairness factors
* D put at severe or grave disadvantage in litigation
* State's interest (e.g. providing justice for its citizens)
* P's interest (inconvenience alone is not sufficient)
44
# Specific personal jurisdiction
Does a product entering the stream of commerce establish minimum contacts?
Answer is always 'maybe' - no majority opinion
45
General personal jurisdiction
If claim does not arise from contact with state, court may assert PJ if:
* D is domiciled in the state
* D is served with process in the state
* D is incorporated or has its principal place of business in the state
46
Erie Doctrine
1. Is there federal law or rule that is on point and direct conflicts with state law? If yes, must apply federal law.
2. If no, is the issue clearly substantive? "Clearly substantive issues": conflict or choice of law rules, elements of claim or defense, statute of limitations and tolling, and granting a new trial because jury's award was excessive or inadequate. If yes, must apply state law.
3. If no, is the issue substantive? Factors: applying state rule would affect outcome of case, balance interests of federal and state governments, avoid forum shopping.
47
Federal common law
Specific, not general
Examples:
1. International relations
2. Admiralty
3. Disputes between states
4. Right to sue federal officer for violating federal rights
5. Claim and issue preclusion for federal judgment
48
What must a complaint include?
Must include:
* Statement with grounds for SMJ
* Statement of claim
* Demand for relief sought
Must plead sufficient facts to support plausible claim and give D notice
49
What are the constitutional requirements for service of process?
Notice must be reasonably calculated to apprise interested parties of the action
50
What does process consist of?
Consists of summons and copy of complaint
51
Who can serve process?
* Any non-party to the case who is 18 or older
* No court appointment necessary
52
When must process be served?
Within 90 days of filing complaint
53
How may process be served on an individual citizen of US?
* Personal service (in-hand delivery)
* Substituted service
* D's agent
* Any methods permitted by state law where court sits or where service made
54
# Service of process
Substituted service
* Must take place at D's usual place of abode (summer home at summertime usually sufficient, summer home at wintertime likely not)
* Substitute person must be of reasonable age and discretion
* Substitute person must reside there
55
How may process be served on a business in the US?
* Officer or agent
* Managing or general agent
* Any methods permitted by state law where court sits or service is made
56
How may process be served on a minor or incompetent?
Only by methods permitted by state law in which court sits or service is made
57
How may process be served on a party in a foreign country?
1. Any methods permitted by international agreement
2. Method directed by the American court
3. Method permitted in foreign country’s law
4. Method permitted by official in response to letter of request
5. Personal service in foreign country unless prohibited by foreign country’s law
6. Mail sent by American court clerk with signed receipt unless prohibited by foreign country’s law
58
# Service of process
Proof of service
* Process server files report with court
* If server is civilian, report is by affidavit
* Failure to file report does not affect validity of service
59
# Service of process
Immunity
Party, witness, or attorney in one civil case is immune from process as a D in another case in federal court in same state
60
Serving other documents
* Deliver or mail document to other party's attorney or pro se party
* May be served by email if parties agree
61
Serving discovery documents
* Mailbox rule applies: service deemed complete at the time documents are mailed
* Generally have 30 days to respond, unless mailed which adds on 3 days
62
What are the waivable defenses?
D must assert these in first response or will lose them:
1. Lack of PJ
2. Improper venue
3. Insufficiency of process
63
# Complaint
How does the judge determine the plausibility of a case?
Using own experience and common sense
64
Which matters require more specificity in complaints?
1. Fraud
2. Mistake
3. Special damages
65
What are the non-waivable defenses?
May be asserted at any time:
* Lack of SMJ
* Failure to state a claim
* Failure to join a party
66
How may a D respond to claims in a complaint?
* Admit, deny, or plead insufficient knowledge
* May only plead insufficient knowledge if answer is actually out of control
* Failure to deny is treated as an admission, except as to damages amount
* May raise affirmative defenses and waivable and non-waivable defenses
67
How may a D respond to a complaint?
* Answer
* Motion for more definite statement
* Motion to strike
* Motion to dismiss
68
Motion for more definite statement
Complaint so vague that D cannot respond
69
Motion to strike
Remove redundant, scandalous, or immaterial parts of complaint
70
What is the timing for D to file motion or answer to complaint?
21 days, or 60 days if service waived
71
Can P amend a complaint?
* Yes, once without court permission
* Must amend within 21 days of D filing response
72
Can D amend an answer?
* Yes, once without court permission
* Must amend within 21 days of P filing response
73
Can a party amend a pleading after time expires?
* Yes, with court permission or written consent of opposing party
* Generally allowed unless delayed too long, would prejudice other party, or would be futile
74
Variance
* Evidence introduced at trial does not match what was pleaded
* Evidence is admitted if opposing party fails to object, and introducing party can move to amend complaint to conform to that evidence
75
Can a party amend a pleading after SoL has run?
* Yes, if the pleading relates back (concerns same conduct, transaction, or occurrence)
* Amended pleading treated as if filed on the date the original pleading was filed
76
May a P amend if they sued wrong D?
Yes, if the correct D knew they should have been sued within period for service of process (within 90 days of filing complaint)
77
Supplemental pleadings
* Set forth things that happened after pleadings were filed
* No right to file, need court permission
78
Certification
Everything submitted to court must be certified by attorney or pro se D that:
1. Facts and denials have evidentiary support or are likely to after further investigation
2. Not submitted for improper purpose
3. Warranted under law or a reasonable modification of law
79
Continuing certification
If attorney or pro se D refers to a prior pleading in a document, automatically renews certification of prior pleading
80
What are the consequences of violating certification requirements?
Court may impose sanctions against party, lawyer, or law firm after giving sanctioned party an opportunity to be heard
Types of sanctions:
* Non-monetary sanctions (e.g. requiring lawyer to go to CLE)
* Monetary sanctions paid to court
81
Certification violation safe harbor
Must serve motion for sanctions on violating party, and only after 21 days can motion for sanctions be filed with court
82
Joinder requirements
Joinder must be authorized by rule and court must have SMJ over claim
83
Joinder of claims
* P may join any claims they have against D regardless of relatedness, so long as court has SMJ
* P may join claims by multiple Ps or multiple Ds if arise from same transaction or occurrence, raise a common question of fact or law, and court has SMJ
84
# Joinder of claims
Compulsory counterclaims
* Opposing party must assert counterclaims arising from same transaction or occurrence, otherwise waived
* Court always has supplemental jurisdiction over compulsory counterclaims
85
# Joinder of claims
Permissive counterclaims
Opposing party may assert counterclaims arising from unrelated transaction, but do not waive if fail to
86
Crossclaims
* Claim against co-party arising from same transaction or occurrence
* Always permissive
87
Impleader
* D brings in non-party which is liable for all (indemnity) or part (contribution) of damages for case arising from same set of operative facts
* Always permissive
* Right to implead within 14 days of serving answer, need court permission after
* Third party citizenship does not affect diversity in original case
* Automatic PJ over absentee served in another state but within 100 miles of court
88
When will the court compel an absent party to join a case?
Absentee is necessary and it is feasible to join the absentee
89
# Compulsory joinder of parties
"Necessary"
* Absentee's interest would be harmed if not joined, and
* Court cannot offer complete relief to existing parties without absentee or D would be subject to multiple or inconsistent liability
* Joint tortfeasors are not necessary parties
90
# Compulsory joinder of parties
"Feasible"
* Court has PJ and SMJ
* Automatic PJ over absentee served in another state but within 100 miles of court
91
# Compulsory joinder of parties
What happens if a necessary absentee cannot be joined?
Court decides whether to proceed without absentee or dismiss case for failure to join dispensible party
Factors:
* Alternative forum available
* Actual likelihood of harm to absentee
* Whether court can shape relief to avoid harm to absentee
92
Intervention
Non-party decides to join case
Intervention of right:
* Absentee's interest may be harmed and interest not adequately represented by current party (compulsory)
Permissive intervention:
* Absentee's claim or defense has at least one common issue of law or fact as the underlying claim (court has discretion)
93
# Service of process
Process of waiving service
1. P mails D copy of complaint, two copies of waiver form, and prepaid return envelope
2. D signs and mails back request within 30 days (or 60 if outside US)
94
# Service of process
When is waiver of service effective?
When P files waiver in court
95
# Service of process
What are the legal effects of waiving service?
* D does not waive any defenses
* If D does not waive and has no good reason, must pay for service
* If D waives, given 60 (rather than 21) days to respond
96
Initial disclosures
Within 14 days of Rule 26(f) conference, both parties must disclose:
* Identities of people with discoverable information party may use in support of their claim or defense (not required to disclose damaging information)
* Computation of money damages
* Insurance coverage
Failure to disclose will result in not being able to use undisclosed material, unless harmless
97
Required disclosure of expert witnesses
* Must disclose expert witness who may provide testimony at trial, but not consulting experts who will not testify at trial
* Includes identity of expert and written report (earlier drafts are protected work product)
* To depose expert, must send subpoena
98
Pretrial disclosures
* Occurs 30 days before trial
* Identities of witnesses
* Documents that will be introduced
99
Discovery tools
Discovery requests generally can only take place after Rule 26(f) conference
Responding party usually pays discovery costs
Tools:
* Request to produce
* Deposition
* Interrogatories
* Medical exam
* Request for admission
100
Request to produce
* Request for party to make available documents and things for review and copying, or permission to enter designated property
* No Rule 26(f) conference required, may do so 21 days after service of process
* Can only be sent to parties, must send subpoena to non-parties
* Must answer within 30 days of RFPs being served, stating material will be produced or asserting objections
101
Deposition
* Live testimony under oath given in response to questions by counsel or pro se party
* Questions may be oral, or written and read in by court report
* Deponent not required to review records before deposition
102
How do you depose a party to the case?
Notice alone sufficient, no subpoena required
103
How do you depose a non-party?
* Requires subpoena
* Failure to subpoena non-party who does not appear may result in noticing party being responsible for costs
* Farthest deponent can be required to travel is 100 miles unless otherwise agreed
104
How do you subpoena an organization?
* Notice organization with information on facts to be discovered
* Organization designates person to testify
105
What are limits to depositions without court approval or stipulation?
* Cannot have more than 10 depositions
* Cannot depose same person twice
* Cannot exceed one 7-hour day
106
Interrogatories
* Written questions to be answered in writing under oath
* Can only be sent to parties
* Answers must be based on reasonably available information
* If answers may be found in business records and burden of finding answers would be about the same for each party, responding party can give access to opposing party
107
Medical examination
* Requires court order that compels party or person in party’s custody or control to submit to medical exam
* Requesting party chooses licensed medical professional to perform exam
* Professional writes report and gives to requesting party
* Examined party may request copy of report, but if they do so they waive doctor-patient confidentiality and must produce all medical records about same condition
108
Request for admission
* Written request asking opponent to admit facts
* Can only be sent to parties
* Must respond within 30 days of being served RFAs
* Responses: deny, deny knowledge, object, admit
* Reasonable inquiry must be made before answering
* If party fails to deny a proper request, matter is deemed admitted
109
# Discovery
Duty to supplement
If new facts come to light after discovery and facts make disclosure incomplete or incorrect, party must supplement responses
110
What can be discovered?
Anything that is:
1. Relevant to a claim or defense, and
2. Proportional to needs of a case
Must disclose even if hurts party's case
111
Discovering ESI
If requesting party makes request for ESI not reasonably accessible due to undue burden or cost, opposing party may move for protective order or object to discovery
* If court finds that ESI not reasonably accessible, P must show good cause for discovery
* If P shows good cause, court may order production and share costs between parties
112
Work product doctrine
Work prepared in anticipation of litigation
Does not include identities of people with discoverable information or reports regularly prepared
* Opinion work product is always protected
* Qualified work product (everything else) may be discoverable if party shows substantial need and undue hardship
113
How does a party claim a discovery protection or privilege?
Party claiming protection or privilege must do so expressly, describe materials in detail, and prepare privilege log
114
# Discovery
What must a party do if they reveal privileged or protected information?
* Must inform opposing party promptly
* Opposing party must return, sequester, or destroy materials
115
# Discovery
Protective order
* Parties must first try in good faith to resolve issue out of court
* Court can then order discovery, limit discovery, or permit discovery on specific terms
116
When are sanctions imposed for discovery violations?
Party fails to:
* Cooperate with initial disclosures
* Cooperate with legitimate discovery reqests
* Preserve discoverable evidence
117
# Discovery
What happens if a party fails to comply with a court order compelling discovery?
* May result in merits sanctions, attorneys' fees and costs for motion, or held in contempt
* Exception: no sanctions when refuse to submit to medical exam
118
# Discovery
Litigation hold
Parties must preserve discoverable information when litigation is reasonably anticipated
119
# Discovery
What will happen if ESI is lost as a result of a party in control failing to take reasonable steps to preserve it?
Adverse inference instruction and/or merits sanction only available if party can show opposing party lost ESI with intent to deprive party of it
120
# Discovery
What are merits sanctions?
Establishment order (establishes certain facts as true)
Strike claims or pleadings on issues which party is not responding
Disallow evidence at trial
If showing of bad faith: dismissal if P refuses, or default judgment for P if D refuses
121
What happens when a party makes a discovery request that is excessively voluminous or irrelevant, or would cause annoyance, embarrassment, or disproportionate expenses?
* Must first meet and confer without court involvement to resolve issue
* If unsuccessful, party may request a protective order from court
122
What information is protected from discovery?
Confidential attorney-client communications
Work product:
* Work prepared in anticipation of litigation (e.g. attorney, private detective)
* Opinion work product is always protected
* Qualified work product (anything else) may be discoverable if party shows substantial need and undue hardship
* Privileged work product must be noted in privilege log
123
When can sanctions be imposed for discovery issues?
Party fails to:
* Cooperate with initial disclosures
* Cooperate with legitimate discovery request
* Preserve discoverable evidence
124
What type of sanctions are imposed for discovery violations?
* Lose ability to use undisclosed information at trial
* Jury instruction for negative inference
* If bad faith shown, court may dismiss claim or enter default judgment for other party
125
Rule 26(f) conference
Unless court order otherwise, at least
126
When is there a right to a jury trial in a civil case?
* P and D have right to jury trial when P seeking money damages
* No right to jury trial when P seeking equitable relief
* If both money damages and equitable relief are sought, money damages will be determined by jury and judge will determine equitable relief based on jury's fact findings
127
Types of strikes in jury selection
1. Challenge for cause
2. Peremptory challenge
128
Challenge for cause
* Strike potential juror because they have knowledge or bias that will keep them from being fair and impartial
* Unlimited number of challenges
129
Peremptory challenge
* Strike potential juror without giving reason
* Exception: cannot be based on person's race or sex
* Three challenges per side
130
How many jurors are required?
Between 6 and 12
131
How must jurors decide on an issue?
Unanimously
132
General verdict
* Jury finds for one party or another and gives relief due
* Example: P wins and is awarded $10k
133
Special verdict
* Jury answers questions by giving conclusions of fact
* Example: traffic light was green
* Court then applies the law to the conclusions of fact
134
General verdict with interrogatories
Jury asked to reach general verdict and answer specific fact questions
135
How will a judge enter a special or general verdict with interrogatories?
* If answers consistent with each other and verdict, judgment entered based on verdict
* If answers consistent with each other but inconsistent with verdict, judgment consistent with answers entered
* If answers inconsistent with each other and at least one general verdict, no judgment entered
136
What must a judge do during a bench trial?
* Record their findings of fact orally or in writing on the record, and
* Record their conclusions of law separate from fact determinations
137
Judgment as a matter of law
* Based on evidence presented, no reasonable jury could disagree as to the result
* Can only be made after opposing party has presented evidence
* Grant of JMOL can be appealed, denial and reserving ruling cannot
138
Renewed JMOL
* Made after trial, but moving party must have made JMOL during trial
* Same standard as JMOL
* If granted, court enters judgment for party that lost jury verdict
139
Motion for a new trial
Granted at judge's discretion
Possible reasons:
* Erroneous jury instruction
* New evidence discovered that could not have been discovered before
* Misconduct by jury, party, or lawyer
* Judgment against the weight of the evidence
* Damages are inadequate or excessive
140
Final judgment rule
* Losing party has right to appeal if court's order determines merits of the entire case
* Must file notice of appeal within 30 days of judgment
141
Are these final judgments:
1. Denial of motion for new trial,
2. Grant of motion for new trial,
3. Summary judgment?
1. Final
2. Not final
3. Not final
142
Rules under Interlocutory Appeals Act
Non-final order may be appealed if:
* Appeal involved a controlling issue of law (not fact),
* Substantial grounds for difference of opinion, and
* Appellate court agrees to hear it
143
Are preliminary and permanent injunctions appealable?
* Yes, as a matter of right
* Exception: temporary restraining orders
144
Collateral order rule
Certain matters considered final and appealabe if issue is separate from and collateral to the main lawsuit, and too important to delay
145
# Standards of review
De novo
* On issues of law, appellate court gives no deference to district court's findings
* Example: JMOL and renewed JMOL
146
# Standards of review
Clearly erroneous
* On issues of fact decided in bench trial, appellate court will affirm unless findings are clearly erroneous
* Example: appealing jury instruction and party failed to make timely objection during trial
147
# Standards of review
"No reasonable jury"
On issues of fact decided in jury trial, appellate court will affirm unless no reasonable jury could come to the finding
148
# Standards of review
Abuse of discretion
* On matters decided at trial judge's discretion, appellate court will affirm the decision was an abuse of discretion
* Example: motion for a new trial
149
Claim preclusion (res judicata)
Claimant can only sue once on a claim
* If P prevails, all other claims merge with final judgment and all future litigation barred
* If P loses in a case, all future litigation barred
150
When does claim preclusion apply?
1. Both cases were brought by same P against same D in same configuration,
2. Both cases arise from same transaction or occurrence, and
3. First case ended in valid final on the merits
151
When is a judgment not on the merits?
Only if based on:
* Lack of PJ
* Lack of SMJ
* Improper venue
* Failure to join an indispensable party
* Court states judgment was "without prejudice"
152
Issue preclusion (collateral estoppel)
Issue in a case that was already decided in a prior litigation cannot be relitigated
153
When does issue preclusion apply?
1. Original case ended in valid judgment on the merits,
2. Same issue was actually litigated and determined in the original case (full and fair opportunity to litigate, including summary judgment, motion to dismiss),
3. Issue was essential to the judgment in the original case,
4. Person issue preclusion is used against was a party or privy to a party in the original case
154
Are these issue preclusions permissible:
1. Non-mutual defensive
2. Non-mutual offense
1. Permitted when person using issue preclusion is non-party to case 1 and D in case 2
2. Permitted when person using issue preclusion is non-party to case 1 and P in case 2 if doing so would be fair
155
Temporary restraining order
Preserves status quo until hearing for preliminary injunction
156
When will a court issue a TRO ex parte?
* Requesting party files a paper under oath clearly showing that if TRO is not issue, they will suffer immediate and irreparable harm
* Attorney certifies in writing that they attempted to give notice to D, or reason why notice should not be required
* If granted, requesting party must post bond to cover costs and damages if TRO was wrongful
* Must be served on D as soon as possible
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How long is a TRO effective for?
Effective for no more than 14 days
* If requesting party has good cause, may be extended for another 14 days
* If TRO extended beyond 28 days, treated as preliminary injunction
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Preliminary injunction
Preserves status quo until court can adjudicate the underlying claim on its merits
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Can a preliminary injunction be issued ex parte?
No
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To obtain a preliminary injunction, what must the requesting party show?
1. P likely to suffer irreparable harm,
2. P likely to win on the merits of underlying claim,
3. Balance of hardship favors P, and
4. Injunction is in public interest
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What are the requirements when a preliminary injunction?
If granted, requesting party must post bond to cover costs and damages if injunction was wrongful
Court must make specific fact findings and separate conclusions of law in deciding whether to grant or deny injunction
Must state:
* Specifically what D must do or refrain from doing
* Why it was issued
* Why threatened injury to P was irreparable
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When may P voluntarily dismiss a case?
1. P may withdraw case without court order before D files answer or motion for summary judgment
2. Parties may stipulate to dismissal
3. P moves for voluntary dismissal
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Is a motion for voluntary dismissal granted with or without prejudice?
First voluntary dismissal is without prejudice, second extinguishes claim
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Default
* P may seek D’s default if D fails to respond to complaint in time
* Not automatic, P must make a motion
* Until default entered, D may respond
* Default terminates D’s right to respond, but does not allow P relief
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How does a party obtain a default judgment?
* Must obtain default
* P may then move for default judgment
* Either clerk or judge enters judgment
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When may a clerk enter default judgment?
1. D made no response at all,
2. Claim for sum certain,
3. P gives affidavit of amount owed, and
4. D is not a minor or incompetent
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When does a judge have to enter default judgment?
* When clerk cannot
* Judge holds a hearing
* If D has appeared in any way, they are entitled to notice
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What are the limits on damages when default judgment is entered?
* Capped by damages stated in complaint
* Cannot obtain a different kind of relief than stated in complaint (e.g. no injunction available if only requested money damages in complaint)
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When may D move to have default or default judgment set aside?
If D can show good cause and a viable defense to the claim
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Motion for summary judgment
* Trial not needed because no genuine issue as to material fact and case can be decided as a matter of law
* Made after a complaint is filed and P has survived Rule 12 motions and no later than 30 days after the close of discovery
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How does a judge assess a motion for summary judgment?
* Pleadings are not considered evidence unless verified (under oath)
* D’s failure to deny allegation in complaint treated as fact
* Judge does not assess credibility
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Rule 26(f) conference
* Parties must meet and confer to discuss discovery, claims, settlement, and preservation of evidence at least 21 days before court's scheduling order is entered
* Parties must submit detailed discovery report within 14 days of conference
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Remittitur
* Amount of damages shocks the conscience because excessive
* P must agree to reduce amount of damages awarded by jury or undergo a new trial
* Permitted in federal court
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Additur
* Amount of damages shocks the conscience because inadequate
* D must agree to pay more than damages awarded by jury or undergo a new trial
* Not permitted in federal court, must grant new trial
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When may D submit an offer to settle?
* D may submit offer to settle up to 14 days before trial
* If P rejects offer and does not do as well as the offer at trial, impose litigation costs on P even if P wins
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# Motion for relief from order or judgment
Timing: clerical error
At any time
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# Motion for relief from order or judgment
Timing: mistake or excusable neglect
In a reasonable time, never more than 1 year
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# Motion for relief from order or judgment
Timing: fraud, misrepresentation, misconduct by opposing party
In a reasonable time, never more than 1 year
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# Motion for relief from order or judgment
Timing: newly discovered evidence that existed at time of trial but could not have been discovered in time to move for a new trial
In a reasonable time, never more than 1 year
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# Motion for relief from order or judgment
Timing: lack of SMJ
At any time
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What are the requirements for class actions?
* Step 1: Satisfy class requirements
* Step 2: Ensure case falls under one of the types of class actions
* Step 3: Court certifies class
* Step 4: Notice to class members
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What are the class requirements?
1. Numerosity
2. Commonality
3. Typicality
4. Adequate representative
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# Class action
Numerosity
Too many class members for joinder to be practicable
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# Class action
Commonality
Question common to all class members, the resolution of which will generate answers for every class member in one stroke
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# Class action
Typicality
Representative’s claims are typical of class
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# Class action
Adequate representation
Representative must fairly and adequately represent interests of class
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What are the types of class action cases?
* Prejudice
* Injunctive or declaratory relief
* Damages/common question
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# Class action
Prejudice case
* Class treatment necessary to prevent harm or prejudice to D or class members
* Very rare
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# Class action
Injunctive or declaratory relief case
* Seeking injunctive or declaratory relief because D treated class members alike
* Cannot seek damages
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# Class action
Damages/common question case
Common questions predominate over individual ones and class action is superior method for handling dispute
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# Class action
How is a class certified?
To certify, court must grant motion to certify class
Certification is immediately appealable
Court must:
* Define class, claims, issues, and defenses
* Appoint class counsel
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# Class action
How must notice be given to class members?
* Court must give individual notice to all reasonably identifiable class members
* Notice must be paid for by representative
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# Class action
How must notice be given to class members in damages class?
Must include notice that class member:
* Has right to opt out
* Will be bound by judgment if do not opt out
* May appear separately if wish to
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# Class action
Is there a right to opt out of injunctive or declaratory relief classes?
No
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# Class action
When may parties settle a class action suit?
* Parties may only settle or dismiss certified case with court approval based on feedback from class members
* Court may refuse to approve settlement unless class members are given a second chance to opt out
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# Class action
How is SMJ established in class action cases?
Federal question cases are treated the same as normal cases
Diversity cases:
* Citizenship of class is determined by citizenship class representative only
* Amount in controversy is determined by class representative’s claim only
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# Class action
CAFA
Any D may remove, but highly local cases should be dismissed or remanded to state court
Court may grant SMJ if:
* Class has at least 100 members,
* Any class member is diverse from any D, and
* Aggregated claims exceed $5 million
