Civil Procedure Flashcards
(203 cards)
1
Q
Personal jurisdiction is proper in federal court if:
A
- Satisfy a State Statute AND
2. Satisfy the Constitution (Due Process).
2
Q
How do you determine whether the Court can Constitutionally exercise PJ over a D? What is the standard?
A
Does D have “such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice”?
3
Q
Personal jurisdiction is clearly constitutional if Defendant is:
A
Domiciled in the forum; consents; or is voluntarily present in the forum when served with process. if none of the above are true, assess a set of factors under contact, relatedness, fairness.
4
Q
If D is not domiciled in the forum, or has not provided consent, or is not physically, voluntarily in the forum when served, how do you analyze whether personal jurisdiction over D is Constitutionally proper?
A
CONTACT; RELATEDNESS; FAIRNESS
(1) Contact: There must be a relevant contact between D and the forum state.
There are TWO FACTORS to be addressed here:
A. Purposeful Availment: The contact must result from purposeful availment—D’s voluntary act. D must “reach out” to the forum state or target the forum to qualify.
B. Foreseeability: It must be foreseeable that D could get sued in this forum.
(2) Relatedness between this contact and plaintiff’s claim.
Ask: Does the P’s claim arise from D’s contact with the forum? IF YES, the court might uphold PJ even if D does not have much contact with the forum (depending on whether PJ would be fair). Where the claim arises from D’s contact with the forum, it is called Specific Personal Jurisdiction. IF NO,then, jurisdiction is ok ONLY if the court has General Personal Jurisdiction. If so, D can be sued there for a claim that arose anywhere in the world. To have General PJ, it must be true that D is at “home” in the forum.
(3) Fairness: only if specific jurisdiction, assess the burden on D and witnesses, the state’s interest, and the Plaintiff’s interest.
5
Q
Define in rem jurisdiction and what are the rules regarding in rem jurisdiction?
A
- Here, power is not over D herself, but over D’s property in the forum.
- It must be attached by the court at the outset of the case.
- To be constitutional, though, D’s contacts with the forum must meet the constitutional test we just applied in in personam.
6
Q
What subject matters can a state court hear?
A
Can hear any kind of case (minor exception relating to patent law, etc). States have “general” SMJ.
7
Q
What subject matter jurisdiction do federal courts have?
A
Federal courts have limited subject matter jurisdiction and can only hear certain types of cases, namely, diversity of citizenship and federal question.
8
Q
Requirements for diversity of citizenship subject matter jurisdiction:
A
between citizens of different states or between a citizen of a state and a citizen of a foreign country (alienage) AND the amount in controversy exceeds 75k.
9
Q
Suppose we have an alien admitted to the U.S. for permanent residence (a so-called “green card” alien). She is domiciled in a U.S. state. Is she considered an alien or a citizen of that U.S. state?
A
She is an alien. So litigation with her might invoke alienage, but not diversity.
10
Q
What is the special rule regarding alienage if a green card alien is domiciled in a U.S. state.
A
There is a special rule that prohibits alienage jurisdiction if a green card alien is domiciled in the same U.S. state as a litigant on the other side of the case. It would not invoke alienage jurisdiction
11
Q
P (AZ) sues D (a green card alien who is domiciled in AZ) in federal court, it seems that there would be alienage. Is there?
A
–No, a statute prohibits SMJ. Even though on one side of the “v.” there is an alien and on the other side there is a citizen of a U.S. state there is no SMJ because that alien is a permanent resident of the same state as the other party across the “v.”
12
Q
P (a U.S. citizen domiciled in Japan) sues D (CA) in federal court. OK? – Is there alienage?
A
No, because P is not an alien. P is a U.S. citizen.
13
Q
P (a U.S. citizen domiciled in Japan) sues D (CA) in federal court. OK? – Is there diversity of citizenship?
A
No, because P is not a citizen of a U.S. state because she is not domiciled in a U.S. state, thus, cannot go to federal court under diversity or alienage.
14
Q
What is the citizenship of a natural person require, define it?
A
The U.S. state of her citizenship for a natural person requires that the person is a U.S. citizen and the state of her citizenship is the U.S. state of her domicile.
15
Q
How to establish a new domicile?
A
Two Requirements:
- Physical presence, AND
- The intent to make that your permanent home.
16
Q
When is citizenship of a natural person relevant in a case?
A
Domicile for purposes of diversity is relevant when the case is FILED.
17
Q
What is the citizenship of a corporation?
A
The citizenship(s) of a corporation are the state or country where its incorporated AND the state or country of its principle place of business.
18
Q
How do you determine a corporations principal place of business?
A
The corporation’s PPB is where its managers direct and control corporate activities. Sometimes referred to as the “nerve center,” and it’s usually the headquarters.
19
Q
Where is the citizenship of an unincorporated business association?
A
Unincorporated associations such as partnerships or limited liability companies (LLC) are citizens of every state in which each of its partners or members are citizens.
20
Q
What is the rule for citizenship of a minor and his representative?
A
Rule: Such persons must sue or be sued through a representative. The representative’s citizenship is irrelevant.
Use the citizenship of the decedent, minor, or incompetent.
21
Q
P sues D for $40,000 breach of contract and for $50,000 for a totally unrelated claim. What is the amount in controversy and the rule?
A
The amount here is $90,000. Why? We aggregate the claims of one P versus one D. Thus, we can add the two amounts together and have a 90k claim for AIC purposes.
Can we aggregate factually unrelated claims? –Yes, (hypo AIC #5) There is no limit on the number of claims that can be aggregated if there is one P and one D, we add them all up.
22
Q
Plaintiff #1 sues D for $50,000. In the same case, Plaintiff #2 sues D for $40,000. Does this mean the AIC requirement?
A
NO! We cannot aggregate these two claims because the claims are not asserted by a single P against a single D. This case cannot invoke diversity because you cannot aggregate the claims thus don’t meet the AIC requirement.
23
Q
If a case fails to meet the amount in controversy requirement, what option does Plaintiff have?
A
Assuming the claims do not invoke federal question jurisdiction, Plaintiff should file in State court!!!! Always go to state court which can hear anything pretty much.
24
Q
P sues joint tortfeasors X, Y and Z for $75,000.01. Can this meet the amount in controversy requirement?
A
Yes for Joint Claims, use the total value of the claim for purposes of AIC. Any joint claims, just take the total because any one of them could be liable for the full amount. (they have to tell you if it is a joint claim!). With joint claims, the number of parties is irrelevant.
25
What is the rule for aggregation for the amount in controversy when the claim involves joint tortfeasors?
For Joint Claims, use the total value of the claim for purposes of AIC. Any joint claims, just take the total because any one of them could be liable for the full amount. (they have to tell you if it is a joint claim!). With joint claims, the number of parties is irrelevant.
26
How do courts determine the amount in controversy requirement of diversity of citizenship when the plaintiff is seeking equitable relief? i.e., P sues D for an injunction to tear down part of his house that blocks P’s view.
TWO TESTS; if either is met, most courts say it’s OK:
(1) Plaintiff’s Viewpoint: Does the blocked view decrease the value of plaintiff’s property by more than $75,000?
(2) Defendant’s Viewpoint: Would it cost defendant more than $75,000 to comply with the injunction? **Throw them both in**—if either one is over 75k, then you meet the AIC requirement.
27
Even if the requirements for a diversity or alienage case are met, what cases will the federal courts decline to hear?
divorce, alimony, child custody, and to probate an estate.
28
Rule of law pertaining to federal question?
The subject matter jurisdiction for federal question cases requires that the claim in P’s complaint “arises under” federal law (e.g., federal constitution, legislation).
29
What is required of plaintiff is seeking subject matter jurisdiction in federal court based on federal question jurisdiction?
Well pleaded complaint rule: It is not enough that some federal issue is raised by the complaint. The P’s claim itself must “arise under” federal law. Look at the claim & ignore other material P alleged. Ask: Is the P enforcing a federal right?
• If the answer is yes, yes FQ jurisdiction.
• If the answer is no, no FQ jurisdiction.
30
Are regular tort, contract, and property claims federal?
No, they are state law claims unless the question's facts specify otherwise.
31
What to do about additional claims in a suit that gets to federal court either on diversity grounds or federal question grounds?
Assess each claim. If the additional claim satisfies either diversity of citizenship or FQ, it can be heard in the federal court case. What if the additional claim does NOT satisfy diversity of citizenship or FQ? The federal court can still hear the claim if it invokes supplemental jurisdiction.
32
What is supplemental jurisdiction? When can it be invoked?
If an additional claim to a claim that is in federal court already, fails to meet diversity of citizenship requirements or federal question requirements. Supplemental jurisdiction is how the federal court will test the subject matter jurisdiction over additional claims that otherwise fail to meet federal SMJ requirements.
33
What is a prerequisite to even consider or assess supplemental jurisdiction?
Supplemental jurisdiction gets non-federal, non-diversity claims into federal court. But the case itself must already be in federal court (because it invoked diversity of citizenship or FQ).
34
P (NC) sues D (SC) for $100,000 damages from a car wreck. That invokes diversity of citizenship, so the case is in federal court. D files a counterclaim against P in that case. The counterclaim is a state-law claim for $125,000. Do you need supplemental jurisdiction for the counterclaim?
No, it invokes diversity jurisdiction. Supplemental jurisdiction only comes up when you don’t have diversity or FQ jurisdiction.
35
P (NC) sues D (SC) for $100,000 damages from a car wreck. D files a counterclaim against P asserting a federal-law claim for $50,000. Would you need supplemental jurisdiction for the counterclaim?
No, because it invokes FQ.
36
P (NC) sues D (SC) for $100,000 damages from a car wreck. D files a counterclaim against P asserting a state-law claim for $50,000. Would you need supplemental jurisdiction for the counterclaim?
Yes because it doesn’t invoke diversity or FQ.
37
What is the standard or test for supplemental jurisdiction?
For the claim to get into federal court, the claim must share a “common nucleus of operative fact” with the claim that invoked federal subject matter jurisdiction. The test is always met when the claim arises from the same transaction or occurrence as the underlying case.
38
What is the limitation to supplemental jurisdiction and when does it apply?
By statute, certain claims cannot invoke supplemental jurisdiction even if they meet “the test.” The limitation applies only in diversity cases, not FQ. And in diversity cases, the limitation takes away supplemental jurisdiction only for claims by Plaintiff, not defendant (narrow limitation!)
39
What is the rule limiting supplemental jurisdiction?
In a diversity case, plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity. The limitation does NOT stop P from overcoming a lack of amount in controversy. It stops P from overcoming problem with citizenship, i.e., diversity.
40
P (PA) sues D (PA) for (1) a claim arising under federal antitrust laws, and joins a claim (2) under state antitrust laws. The claims arise from the same T/O (so we meet “the test”). OK?
Claim (1) is OK because it’s a FQ, so the case gets into federal court. But claim (2) is not FQ (because it’s based on state law) and does not meet diversity. Can claim (2) invoke supplemental jurisdiction? Analysis: (1) Claim 2 meets “the test” (same T/O). (2) The limitation does not apply. Why? –Because it never applies in FQ cases, only diversity cases.
41
P (NC) sues D (SC) for $100,000 damages from a car wreck. That invokes diversity of citizenship, so the case is in federal court. D files a counterclaim arising from the same T/O against P in that case. The counterclaim is a state-law claim for $50,000. The counterclaim fails to invoke diversity of citizenship and fails to invoke FQ. Can it invoke supplemental jurisdiction?
(1) It meets the test (same T/O). (2) The limitation does not apply. Why? –Because it NEVER applies to claims by defendants. Thus, we have supplemental jurisdiction.
42
P (NC) sues D (SC) for $100,000 damages from a car wreck. That invokes diversity of citizenship, so the case is in federal court. D files a counterclaim arising from different situation against that same P in that case. The counterclaim is a state-law claim for $50,000. Can the counterclaim invoke supplemental jurisdiction?
No, because it does not meet the test. There is no common nucleus of operating fact and does not arise from the same transaction or occurrence.
43
P (CO) sues D-1 (PA) and D-2 (CO) on state-law claims in one case. The claims arise from the same transaction and occurrence. The claims exceed $75,000. Can there be supplemental jurisdiction over the claim by P against D-2?
NO. Because this case violates the complete diversity rule, it does not invoke diversity jurisdiction. SO THE CASE NEVER GETS INTO FEDERAL COURT. So there is no case in federal court, so no chance for supplemental jurisdiction.
44
P-1 (VA) and P-2 (VA) sue D (PA) on state-law claims. P-1’s claim is for $100,000. P-2’s claim arises from the same T/O, and is for $50,000. Can the claims get to federal court for subject matter jurisdiction?
P-1’s claim meets the requirements for diversity, so gets the case into federal court. But P-2’s claim does not, because even though citizenship is OK, the claim does not exceed $75,000. Can the claim by P-2 invoke supplemental jurisdiction? (1) It meets “the test” (same T/O); and (2) The limitation does not apply. Why? – Because P-2 is not asserting a claim against a co-citizen.
45
Finish this rule: A non-federal, non-diversity claim can be heard in federal court if....
if it meets “the test”…
UNLESS it is:
1. Asserted by a plaintiff
2. In a diversity of citizenship (not FQ) case AND
3. Asserted against a citizen of the same state as the plaintiff.
46
After analyzing supplemental jurisdiction, what can be determined in order to still make SMJ invalid?
Discretionary Factors (rarely tested). Even if we meet the requirements for supplemental jurisdiction, the court has discretion to decline jurisdiction. It can do so if the state law claim is complex or state law issues would predominate in the case. But the more likely one is this: it can decline supplemental jurisdiction if the underlying claim is dismissed early in the case.
47
What is removal?
D sued in state court might be able to “remove” the case to federal court. Removal transfers the case from a state trial court to a federal trial court. If removal was improper, the federal court can “remand” the case back to state court.
48
When is removal proper?
D must remove within 30 days of service (not filing) of the first paper that shows the case is removable. Usually, that means within 30 days of service of process.
49
Do all defendants have to consent to removal?
It is ALL D’s who have been served with process must join in the removal.
50
P sues D-1 and D-2 on June 1. D-1 is served with process on June 1. Can D-1 alone remove the entire case?
Yes, because D-1 is the only D who has been served with process.
51
Suppose D-1 does not remove within 30 days. Then D-2 is served with process on August 1. Can she and D-1 now remove?
Yes, the 30 days starts anew with service on D-2.
52
P sues D in state court. D files a counterclaim against P in that case. Can P remove?
No because plaintiff can NEVER remove a case to federal court regardless of any counterclaim.
53
What kind of cases can be removed to federal court and by whom?
Removal is by defendant only! And the General Rule is that Any case that meets the requirements for diversity or FQ.
Except these two big exceptions– but these exceptions apply only if we are removing on the basis of diversity of citizenship jurisdiction.
1. No removal if any D is a citizen of the forum (instate D rule) AND
2. No removal more than one year after the case was filed in state court.
54
What is the exception to the general rule regarding the kinds of cases in which defendant can remove to federal court?
two big exceptions– but these exceptions apply only if we are removing on the basis of diversity of citizenship jurisdiction.
1. No removal if any D is a citizen of the forum (instate D rule) AND
2. No removal more than one year after the case was filed in state court.
55
Where do we remove?
Only to the federal district that embraces the state court where the case was filed.
56
How do we remove?
D files “notice of removal” in federal court, stating grounds of removal, meaning that the case invokes diversity or federal question. Then, she attaches all documents that were served on her in state action. She serves a copy of the “notice of removal” on adverse parties. Then she files a copy of the “notice of removal” in state court.
57
What do you do with a notice of removal? What is it?
D files this in federal court stating the grounds for removal and serves a copy to P and files a copy in state court.
58
Where do you file a notice of removal?
D files this in federal court stating the grounds for removal and serves a copy to P and files a copy in state court.
59
What if P thinks the case should not have been removed. What does P do?
P moves to remand to state court. If P thinks removal was procedurally improper (e.g., D did not attach relevant papers to her notice of removal), she must move to remand no later than 30 days after the notice of removal was filed. If P thinks removal was improper because the federal court lacks subject matter jurisdiction, when can she move to remand to state court? –Anytime! There is never a time limit on SMJ.
60
D removes a diversity case but there was an instate D. P moves to remand. Is the instate D problem “procedural” or is it a subject matter jurisdiction problem?
In-state defendant problem is procedural and not a SMJ problem so she must move to remand within 30 days.
61
What if P thinks removal was procedurally improper (e.g., D did not attach relevant papers to her notice of removal)?
If P thinks removal was procedurally improper (e.g., D did not attach relevant papers to her notice of removal), she must move to remand no later than 30 days after the notice of removal was filed.
62
What if P thinks removal was improper because the federal court lacks subject matter jurisdiction?
P can move to remand to state court at anytime! There is never a time limit on SMJ.
63
What does venue generally pertain to?
SMJ governs whether can take a case to federal court. Venue pertains to exactly which federal court. The country is divided into federal districts. P is suing in federal court and wants to lay venue in a proper district.
64
Where to lay proper venue?
› All defendants reside* (special rule below) or
| › A substantial part of the claim arose.
65
If a case is removed, venue is proper...?
P may lay venue in any district where:
› All defendants reside* (special rule below) or
› A substantial part of the claim arose.
- These choices do NOT apply in a case that was removed from state court to federal court. Remember—in a removed case, venue was set in the district that embraced the state court (see supra previous page).
66
Where to lay venue in a federal question SMJ case?
All defendants reside* (special rule below) or a substantial part of the claim arose.
67
Where to lay venue when the federal SMJ is based on diversity of citizenship?
All defendants reside* (special rule below) or a substantial part of the claim arose.
68
Where can P lay venue if all Ds reside in different districts of the same state?
P can lay venue in the district in which any D resides.
69
WHERE DO DEFENDANTS “RESIDE” FOR VENUE PURPOSES?
A human “resides” in the district where domiciled, so there is only one. A business (corporation or non-incorporated) resides in all districts where subject to PJ for the case. That can be very broad and multiple districts.
70
what is transfer of venue?
A federal district court may transfer the case to another federal district court. The original court is the “transferor” and the one to which the case is sent is the “transferee.”
71
When can a case venue be transferred?
It can only transfer to a district where case could have been filed, meaning that the transferee must be a proper venue and have PJ over the D. So can transfer to federal court only if these things are true and must be true independent of waiver!
Exception: The court can transfer to any district (even an improper venue) if all parties consent (unlikely that P will do so) and the court finds cause for the transfer.
72
Does a party have a right to transfer?
No, there is no right to transfer. If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and on the interest of justice. The factors the court looks to in deciding whether to order transfer of the case are public and private factors showing that the transferee is the center of gravity, i.e., better.
73
What factors does the court look to in deciding whether to order transfer of the case?
The factors the court looks to in deciding whether to order transfer of the case are public and private factors showing that the transferee is the center of gravity, i.e., better.
74
Can a court on its own transfer venue?
Yes, however, Courts are a bit nervous, because transfer overrides P’s choice of forum and P did chose a proper venue. But if the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and on the interest of justice. The factors the court looks to in deciding whether to order transfer of the case are public and private factors showing that the transferee is the center of gravity, i.e., better.
75
If the original district is an improper venue, what may that court do?
It may transfer in the interest of justice OR dismiss the case.
76
What is the difference between transfer of venue and forum non conveniens
Like transfer, there is another court that is the center of gravity that would make more sense than the present court. But in forum non conveniens, the court does not transfer to the more convenient court. The court instead “dismisses” or “stays” the case.
77
Why does forum non conveniens exist and why can't the court just transfer venue instead?
The court dismisses or stays the case because the more convenient court is in a different judicial system (e.g., a foreign country), so transfer is impossible! The decision is based on the same public and private factors as transfer in D1. supra. This requires a strong showing, though, since this results in dismissal or stay. FNC dismissal almost never granted if P is resident of the present forum.
78
What are the requirements for forum non conveniens?
Rule: The other court must be available and “adequate.”
o Suppose the foreign court does not permit trial by jury or recovery for emotional distress. Do things like that make the foreign court inadequate? --no, just so the plaintiff will get her day in court is all that we are worried about.
79
What is service of process generally and what does it pertain to?
D is entitled to notice that she has been sued. Usually, this consists of: (1) a summons (formal court notice of suit and time for response); and (2) a copy of the complaint. Together, these two documents are called “process.”
80
WHO CAN SERVE PROCESS?
- Any non-party who is at least 18 years old.
- The process server need NOT be appointed by a court (note this difference under IL state law, you need to be a non-party who is appointed by the court)
81
How is process served?
personal service; substituted service; service on agent; and state law permitted service methods (such as service by mail, etc)
82
How does a party waive service?
P mails to D a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (e.g., stamped envelope for sending it back to P). If D executes and mails waiver form to P within 30 days, D waives the service.
- If D waives formal service of process, D does not waive any defense like lack of PJ.
When D signs and mails the waiver form back to P, P has to file the waiver in court and the waiver is effective then. If D fails to return the waiver form. P then has D served personally or by substituted service.
83
What happens if D fails to return the waiver of service form?
If D did not have good cause for failing to return the waiver form is there a penalty for D? –Yes, D pays the costs of service.
84
What is "Return of Service"?
The person who serves process must file a report with the court detailing how service was made. If the server was a civilian, the report is by affidavit (sworn statement, under oath). **The process server’s failure to file this report does not affect the validity of service.
85
What effect on the validity of service is there if the process server fails to file a report
The process server’s failure to file this report does not affect the validity of service.
86
How do we serve other documents such as interrogatories?
Other documents (e.g., answer, other pleadings, motions, discovery), get served, but the parties don’t need a summons or to do it so formally. We serve these documents by delivering or mailing the document to the party’s attorney (or pro se party – a pro se party is one without a lawyer). - You can serve these documents by e-mail if the party consents.
87
Suppose we mail interrogatories to the other party....how long does one have to respond?
You have 30 days in which to respond to interrogatories. Do you get extra time to respond if the interrogatories were mailed to you? –3 extra days to response.
88
Do you get extra time to respond if the interrogatories were mailed to you?
yes, you get the 30 days to respond to interrogatories plus since mailed, three extra days to respond.
89
Can you serve other documents during the pretrial period via email?
You can serve these documents by e-mail if the party consents.
90
What are the requirements for a complaint?
(1) Statement of grounds of subject matter jurisdiction;
(2) Short and plain statement of the claim, showing entitled to relief;
(3) Demand for relief sought (e.g., damages, injunction, declaratory judgment)
91
Does the complaint need to allege grounds of personal jurisdiction and/or venue? What about SMJ?
- P doesn’t need to allege grounds of personal jurisdiction or venue. P needs to allege grounds of SMJ.
92
In stating the claim, federal courts traditionally used “notice pleading,” which means you only need enough detail to put the other side on notice. Now, though, the Supreme Court requires more detail: what is the new standard?
The Standard: –you must plead facts supporting a “plausible” claim. (this is subjective to the Judge). To determine plausibility, the judge uses her own experience and common sense.
93
What is the pleading standard and how is the pleading standard analyzed by a judge?
plead facts supporting a plausible claim--To determine plausibility, the judge uses her own experience and common sense.
94
What three matters must be pleaded with even more detail with particularity or specificity?
- Fraud*,
- Mistake, and
- Special Damages.
95
Civil Procedure Rule 12 requires D to respond in what way?
D must respond in one of two ways: (1) By Motion, or
| (2) By Answer.
96
To avoid default, D must D do ______ within _____ days of service of process.
D must respond by (1) By Motion, or (2) By Answer within 21 days of service of process. If you waived service, you get 60 days from when P mailed you the waiver form.
97
What is the timeframe if a D waives service of process?
if you waive service, you get 60 days FROM WHEN P mailed you the waiver form.
98
What are motions, namely, Rule 12?
Rule 12 Motions are not pleadings; they are requests for a court order.
99
If D responds with a motion, what does that entail?
Motions (Rule 12) are requests for a court order.
Motions on the Issues of Form: (1) Motion for more definite statement; (2) Motion to strike. Further, it could entail Rule 12(b) Defenses, but these can also be put in a motion to dismiss or in an answer.
100
What are Motions on Issues of Form?
A rule 12 Motions on the Issues of Form (D first response to the pleadings) include:
(1) Motion for more definite statement – pleading so vague D can’t frame a response (rare);
(2) Motion to strike, which is aimed at immaterial or scandalous things.
101
What is a Motion for a more definite statement?
It is a Rule 12 Motion on the Issues of Form (D first response to the pleadings) arguing that the pleading so vague D can’t frame a response (rare);
102
What is a motion to strike?
It is a Rule 12 Motion on the Issues of Form (D first response to the pleadings) which is aimed at immaterial or scandalous things.
103
What are the Rule 12 defenses?
(1) Lack of subject matter jurisdiction (SMJ);
(2) Lack of PJ;
(3) Improper Venue;
(4) Improper Process (problem w/ papers);
(5) Improper Service of Process;
(6) Failure to State a Claim;
(7) Failure to Join Indispensable Party.
104
If D wants to allege a rule 12 defense, what does D file?
These defenses can be put either in a motion to dismiss or in the answer.
105
What are the waivable rule 12 defenses? What is the timeline for these defenses?
(2) Lack of PJ;
(3) Improper Venue;
(4) Improper Process (problem w/ papers);
(5) Improper Service of Process;
"WAIVABLE" DEFENSES MUST BE PUT IN THE FIRST RULE 12 RESPONSE (MOTION OR ANSWER) OR ELSE THEY ARE WAIVED?
106
P sues D. D files a timely motion to dismiss for improper service of process. The court denies the motion, after which D files and serves his answer, asserting lack of PJ and improper venue. OK?
No. D has waived both defenses because they are waivable and were not in D’s first Rule 12 response.
107
P sues D in a district that is an improper venue and lacks PJ over D. D files an answer in which he raises neither defense. Two months later, D moves to dismiss for improper venue and lack of PJ and, in the alternative, to transfer to a proper venue that has PJ over him. He has waived PJ and venue, but can the court order transfer?
Yes, the Court has discretion to transfer even though D waived venue.
108
At trial, D moves to dismiss for failure to join an “indispensable party” and for failure to state a claim on which relief can be granted. OK?
Yes, these two can be raised any time through trial. They are not waivable.
109
After trial, D asserts for the first time that the court lacks subject matter jurisdiction. OK?
yes SMJ IS NEVER WAIVED!
110
P (FL) sues D in federal court for $500,000, trying to invoke diversity of citizenship jurisdiction. P thinks (and alleges) that D is a citizen of GA. It turns out that when the case was filed, D was a citizen of FL. The court finds out about this a year after the case was filed. The litigation has proceeded. The parties and the court have done a great deal of work. What must the court do?
It MUST dismiss, a federal court cannot hear the case without violating the 10th Amendment.
111
If the case had been removed from state court, and it turns out that the federal court lacked subject matter jurisdiction, would the federal court dismiss?
–No, it would REMAND to state court.
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What is the Answer? What does D do in the answer?
It is a PLEADING. D does two things in the answer:
Respond to Allegations of Complaint: Admit; Deny; State that you lack sufficient information to admit or deny AND raise affirmative defenses
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If D states that you lack sufficient information to admit or deny, what does that entail?
It the effect of a denial, but D can't use if the answer is in his control? D MUST investigate. So if P alleges something and D knows that the answer is in D’s records, D has to look it up. D cannot say that he does not know.
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What duty does D have for his answer?
Duty to investigate.
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What is the rule regarding Answers and damages for D?
D never deemed to admit damages.
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What is a Failure to Deny?
In his complaint, P alleges, “D was intoxicated while driving his car.” In his answer, D alleges, “P has no proof that I was intoxicated.” Did D make a mistake? –Yes, D has admitted intoxication because he failed to deny it.
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P sues D for breach of contract. D answers, denying material allegations. At trial, D introduces evidence that the contract was procured by P's fraud, and is therefore unenforceable. P objects. What result?
D has waived the affirmative defense because D failed to plead it (put it in the answer).
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what are affirmative defenses?
These inject a new fact into the case, which will allow D to win. These must be plead in the answer Classic affirmative defenses are statute of limitations, statute of frauds, res judicata, self-defense…etc.
119
what is the timeframe for counterclaims?
A claim against an opposing party. After D serves a counterclaim against P, P has to respond within 21 days
120
What is a counterclaim? What is it apart of?
A claim against an opposing party. Once somebody asserts a claim against you, you are opposing parties. Your claim back against that person is a counterclaim. Usually, this is a claim by D against P. The counterclaim is part of D’s answer.
121
what are the two types of counterclaims?
compulsory and permissive
122
What is a compulsory counterclaim?
It is a counterclaim that arises from the same transaction or occurrence as the original P's claim. Unless the party has already filed this claim in another case, the party must file it in the pending case or the claim is waived.
123
What is a permissive counterclaim?
This counterclaim does not arise from the same transaction or occurrence as P's claim. Permissive means that you are not required to file it in this case and may bring suit separately. You must make sure that the claim has federal SMJ.
124
What is a crossclaim?
This is a claim against a co-party. It MUST arise from the same transaction or occurrence as the underlying action.
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Joinder in federal court--generally
It is sometimes compulsory, but it is liberal in federal court.
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Claim Joinder
In federal court, a party may join as many claims as it has against an adversary regardless of whether there is any connection between those claims.
127
Venue: Foreign court analysis:
Rule: The other court must be available and “adequate.”
Suppose the foreign court does not permit trial by jury or recovery for emotional distress. Do things like that make the foreign court inadequate? --no, just so the plaintiff will get her day in court is all that we are worried about
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Additional Claims after crossclaims/joinder, etc.
- Once you file a counterclaim or crossclaim (or any claim) you can join an additional claim to it even if that claim has nothing to do with the others.
- This additional claim (like any claim in federal court) must invoke subject matter jurisdiction. So you assess whether it invokes diversity or FQ.
- If neither diversity nor FQ is met, then try supplemental jurisdiction.
- If supplemental jurisdiction does not apply, the claim is dismissed. It can then be filed in state court.
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Standard for the Right to Amend Pleadings in Federal Court:
Plaintiff has a RIGHT to amend ONCE within 21 days after D serves her first Rule 12 response (motion or answer). Defendant has a right to amend ONCE within 21 days of serving his answer.
130
What if there is no right to amend the pleadings in federal court? What are the options?
"Leave of Court" If there’s no right to amend, seek leave of court. It will be granted if “justice so requires.” The court looks at factors: Delay, prejudice, & futility of amendment.
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Amendments: Variance
Have to do this at trial. That’s where the evidence at trial does NOT MATCH WHAT'S PLEADED. P sues for breach of contract. D answers. At trial, P introduces evidence that D assaulted him. D doesn’t object. OK? Evidence of assault is admitted into evidence (because D didn’t object). At or after trial, P can move to amend the complaint to “conform to the evidence.” What does that mean? We are going to amend to show the assault claim. The original complaint said nothing about the assault, only contract claim. We do this to this ensures that the pleadings match what was actually tried. but D does object. Evidence of assault is inadmissible because it is at “variance with the pleadings.
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Amendment after the statute of limitations had run?
Doctrine of Relation Back
- Rule: Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading. So it can avoid a statute of limitations problem.
- P files his complaint and has process served on July 1. The statute of limitations runs on July 10. In August, P seeks leave to amend to add a new claim. Is that new claim time-barred because the statute ran on July 10? If the original claim and the new claim concern the same conduct, transaction or occurrence, there is relation back. That means we treat the August amendment as though it was filed on July 1.
133
P files his complaint and has process served on July 1. The statute of limitations runs on July 10. In August, P seeks leave to amend to add a new claim. Is that new claim time-barred because the statute ran on July 10?
If the original claim and the new claim concern the same conduct, transaction or occurrence, there is relation back. That means we treat the August amendment as though it was filed on July 1.
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Supplemental Pleadings
- These set forth things that happened after the pleading was filed.
- Amended pleadings are about things that happened before the pleading was filed but were not asserted until later.)
135
P sues D for breach of contract. After the case is filed, D runs over P with her car. P wants to add a tort claim to the existing case. What procedures will P move to file?
She will move to file a supplemental pleading! (**DON’T CALL IT AN AMENDED PLEADING!**)
- Is there ever a right to file a supplemental pleading? –No, it is always discretionary.
- But the court will often do so unless it will cause delay or prejudice.
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Is there a right to file a supplemental pleading?
No, it is always discretionary.
| - But the court will often do so unless it will cause delay or prejudice.
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Rule 11
RULE 11.****
- Applies to all documents except discovery (which are treated by another rule).
- When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
(1) The paper is NOT for an IMPROPER PURPOSE, and
(2) The legal contentions are WARRANTED by law (or non-frivolous argument for law change), and
(3) The FACTUAL contentions and denials of factual contentions have EVIDENTIARY support (or are likely to after further investigation).
You make this certification EVERY time you “present” a position to the court (e.g., when you later advocate a position taken in the document). It is a continuing certification.
- The party or attorney or law firm or any combination thereof.
- Before imposing a sanction, the court must give a chance to be heard.
- The purpose of Rule 11 sanctions is to deter behavior, NOT punish
- Often, courts impose non-monetary sanctions (e.g., require lawyer to attend professionalism classes).
- Monetary sanctions, if any, are often paid to court, not to the other party.
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When a lawyer or pro se party signs documents, what are they certifying?
When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
(1) The paper is not for an improper purpose, and
(2) The legal contentions are warranted by law (or non-frivolous argument for
law change), and
(3) The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).
In addition, you make this certification every time you “present” a position to the court (e.g., when you later advocate a position taken in the document). It is a continuing certification.
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If there is a violation (e.g., assertion of a baseless claim), against whom may Rule 11 sanctions be ordered? –
The party or attorney or law firm or any combination thereof.
- Before imposing a sanction, the court must give a chance to be heard.
- The purpose of Rule 11 sanctions is to deter behavior, NOT punish
- Often, courts impose non-monetary sanctions (e.g., require lawyer to attend professionalism classes).
- Monetary sanctions, if any, are often paid to court, not to the other party.
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If the other party violates Rule 11:
If the other party violates Rule 11, you cannot make a motion for sanctions immediately
o ***You serve the motion on other parties but CANNOT FILE it. The party in violation has a SAFE HARBOR of 21 days in which to fix the problem & avoid sanctions.
o If he does not do so, THEN FILE the motion.
- The court can raise Rule 11 problems on its own (“sua sponte”)
o Court usually issues an “order to show cause” why sanctions should not be imposed.
o The court must give a party a CHANCE TO BE HEARD before imposing a sanction.
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Initial Disclosures
Unless a Ct order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference, each party MUST disclose:
1. IDs of persons who have discoverable info that you (the disclosing party) may use to support your claims or defenses.
2. Documents and things that you may use to SUPPORT ur claims or defenses** produce copies or a description of these things
3. Computation of monetary relief & documents/ESI supporting it.
4. Insurance Coverage.
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What happens if a party fails to disclose something she was required to disclose?
That party cannot use it in the case UNLESS the failure was JUSTIFIED or HARMLESS.
What if you know about such documents, ESI, or things, but they are not in your custody or control. Do you have to disclose them?
• No, it is only things in a party’s control.
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Consulting Experts
Consulting Experts:
An expert that a party hired to help it prepare the case, but does not intend to call that expert to testify at trial is a consulting expert.
• Facts known and opinions held by consulting experts are generally NOT discoverable – only in “exceptional circumstances.”
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When MUST you disclose about the Expert witness?
Expert Witnesses (EW).
- Later in the case, at a time directed by the court, each party must identify expert witnesses “who may be used at trial.”
- As to an expert witness (EW) “who may be used at trial,” each party must generally disclose to the other parties the identity of the EW and a written report prepared by the EW.
• The written report must include
(1) Opinions EW will express,
(2) Bases for the opinions,
(3) Facts used to form the opinions,
(4) EW’s qualifications, and
(5) How much EW is being paid.
- Thereafter, may a party take the deposition of EW? –Yes.
• That party should subpoena EW to compel her attendance.
• That party must pay the EW a reasonable fee per hour.
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Pre Trial Mandatory Disclosure
Pretrial Mandatory Disclosure.
- No later than 30 days before trial, must give detailed information about trial evidence, including identity of witnesses to testify live or by deposition and documents/ESI/things to be introduced at trial.
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Scope of Discovery
You can discover anything relevant to a claim or defense. “Relevant,” includes things that are “reasonably calculated to lead to the discovery of admissible evidence.” (very broad!) This is important because it is broader than admissibility!
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What is the Proportionality Doctrine and when is it used?
Proportionality Doctrine:
Even if something is relevant, the court has authority to limit discovery if the request is cumulative or if the burden outweighs the importance of the issue.
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What is Evidentiary Privilege?
Can object to discovery on the basis of evidentiary privilege, like confidential communications btw Atty & client.
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Though the memo is work product, Howell may be able to discover some of it…
Item (a) (the witness statement by Gilligan) is discoverable if Howell shows (1) substantial need; and (2) it is not otherwise available.
This is called “qualified work product.” BUT there is also “absolute work product,” which cannot be discovered.
Here, items (b) and (c) are absolutely protected because they are (1) mental impressions, (2) opinions, (3) conclusions, & (4) legal theories.
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Asserting Privilege or Work Product
- If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail.
- You do this in a document that lists the materials protected by date, author, recipient, and privilege or protection claimed.
o It must be in enough detail to allow the judge to determine whether the material is protected. This document is called a privilege log.
- If you inadvertently produce privileged or protected material, you should notify the other party promptly. The other party then must return, sequester, or destroy it pending decision by the court about whether there has been a waiver.
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There are three ways courts get involved in discovery disputes:
Protective Order.
- If the responding party thinks a discovery request subjects it to annoyance, embarrassment, undue burden or expense (e.g., ESI is not reasonably accessible (e.g., deleted files)) that party moves for a protective order.
o She must certify that she tried in good faith to get the info without court involvement – i.e., that she asked the other side to “meet and confer.”
- If the court agrees, it can:
(1) Deny Discovery or
(2) Limit It or
(3) Permit It On Certain Terms.
Illustration:
P and D are involved in litigation over a trade secret held by D. D is worried that if P discovers the trade secret, P might exploit it in the marketplace. Can D request a protective order that the trade secret be used only in litigation and not used in the market? –Yes, and this is in the court’s discretion.
b. Partial Response to Discovery Request.
- Here, the responding party answers some questions but objects to others (it will be obvious).
- Requesting party will make a motion to compel answers, and the court will decide whether the objections were legitimate.
c. No Response to Discovery Request.
- Here, the responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production.
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Sanction for Discovery
Sanctions Against a Party.
- The party seeking sanctions must certify that she tried in good faith to get the info without court involvement.)
a. Partial Response:
TWO STEPS:
(1) You move for an order compelling the party to answer the unanswered questions, plus costs (including attorney’s fees) of bringing motion.
(2) IF the party violates the order compelling him to answer, RAMBO sanctions plus costs (and attorney’s fees re the motion) and could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam).
b. No Response:
ONE STEP:
RAMBO plus costs (and attorney’s fees for the motion). No need to get an order compelling answers. Go directly to RAMBO.
RAMBO SANCTIONS (choices available to judge):
- Establishment order (establishes facts as true)
- Strike pleadings of the disobedient party (as to issues re the discovery)
- Disallow evidence from the disobedient party (as to issues re the discovery)
- Dismiss plaintiff’s case (if bad faith shown)
- Enter default judgment against defendant (if bad faith shown)
- If a party fails to produce ESI because it was lost in the good faith, routine operation of an electronic info system, are there sanctions? --only in exceptional cases
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What are the rules for Necessary and Indispensable Parties in federal court?
Who’s Necessary?
An absentee is necessary if either:
1. Without A, the court cannot accord complete relief among existing parties (worried about multiple suits); OR
**2. A’s interest may be harmed if he is not joined (practical harm) [focuses on absentee]; OR
3. A claims an interest that subjects a party (usually D) to a risk of multiple obligations [worried about the defendant].
(note: Joint Tortfeasors are NEVER necessary_
After determining that a party is necessary, the court must decide whether joinder is feasible.
It is feasible if:
(1) There is PJ over A; and (2) Joining A will not goof up diversity jurisdiction (the court determines whether you would come in as a P or a D to see if bringing you in will goof up diversity).
If your joinder is feasible, then the court orders your joinder.
If A cannot be joined because it is not feasible, the court MUST do 1 of 2 things.
(1) Proceed without A; OR
(2) Dismiss the entire case.
The court looks at these factors:
(a) Is there an alternative forum available? (maybe some state court);
(b) What is the actual likelihood of harm to you?
(c) Can the court shape relief to avoid that harm to you?
What happens if the court decides to dismiss rather than to proceed without (A)? –then the absentee is indespensible.
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Are Joint Tort Feasors Necesessary?
NEVER!
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So you are necessary. NOW WHAT?
So you are necessary. NOW see if your joinder is “feasible.”
- It is feasible if:
(1) There is PJ over you; and
(2) Joining you will not goof up diversity jurisdiction (the court determines whether you would come in as a P or a D to see if bringing you in will goof up diversity).
- If your joinder is feasible, then the court orders your joinder.
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What if Absentee is necessary and indispensable but cannot be joined?
3. If A cannot be joined…
- What happens when (A) cannot be joined (e.g., no PJ over you)?
o The court must do one of two things. What are the choices?
(1) Proceed without A; OR
(2) Dismiss the entire case.
- How does the court make that decision? (no one knows how to weigh these—so not likely a m/c question—just mention these in essay).
- It looks at these factors:
(a) Is there an alternative forum available? (maybe some state court);
(b) What is the actual likelihood of harm to you?
(c) Can the court shape relief to avoid that harm to you?
- What happens if the court decides to dismiss rather than to proceed without you (A)? –then the absentee is indespensible.
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Steps for Impleading a Party
- Steps for impleading the TPD in the pending case:
1. D files a third-party complaint naming the TPD; and
2. Serve process on the TPD. (So must have PJ over TPD.)
- There is a right to implead within 14 days of serving your answer. After that, you need court permission.
- After TPD is joined, P may assert a claim against TPD if the claim arises from the same T/O as the underlying case (#3)
- After TPD is joined, TPD may assert a claim against P if the claim arises from the same T/O as the underlying case (#4)
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Right to implead?
There is a right to implead within 14 days of serving your answer. After that, you need court permission.
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Preliminary Injunction
- P is planning to file suit (or has sued). P is worried that before that case can go to trial, D may do (or fail to do) something that will prejudice P’s case. P wants injunctive relief – a court order that D either:
(1) Do something or
(2) Refrain from doing something.
- The court is nervous about doing this because the merits of the underlying dispute have not been decided.
PRELIMINARY INJUNCTION.
- Maintains status quo until the court can adjudicate the underlying claim on the merits (trial).
- A preliminary injunction can NEVER be granted ex parte.
o The burden is on the Applicant to show:
(1) Applicant is likely to suffer irreparable harm if the injunction is not issued;
(2) Applicant is likely to win on the merits of the underlying case;
(3) The balance of hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued); AND
(4) The injunction is in the public interest.
There is NEVER a RIGHT to an injunction. It is ALWAYS discretionary.
Bond. If court grants the preliminary injunction, Applicant MUST post a bond.
The court may consolidate the hearing on the motion for preliminary injunction w/ trial on the underlying case and can advance trial to do so.
- The preliminary injunction must state its terms in SPECIFICITY, DESCRIBE in detail what D must do/refrain from doing, & state WHY it was issued.
In granting or denying the preliminary injunction, the court MUST MAKE SPECIFIC FINDINGS OF FACT AND SEPARATE CONCLUSIONS OF LAW. An order granting or denying a preliminary injunction is immediately appealable.
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What is a Temporary Restraining Order and when can it be issued?
A court can issue a TRO EX PARTE in limited cases. Ex parte TRO is proper ONLY IF:
(1) Applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate & irreparable harm;
AND
(2) Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawyer or why such notice should not be required.
- If the court issues the TRO, applicant a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.
- The TRO must state its terms in SPECIFICITY, describe in detail what D must do or refrain from doing, and state why it was issued, and why the threatened injury to P was irreparable.
- If the court issues the TRO, the order must be served on D AS SOON AS POSSIBLE.
If the court issues the TRO, D's options are to move to dissolve or modify the TRO. TRO is effective for NO MORE THAN 14 days (or less if Ct states). If Applicant shows good cause before expiration, it can be extended for up to another 14 days. So a TRO cannot extend beyond 28 days.
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Voluntary Dismissal
P wants to withdraw the case. P can make a motion for voluntary dismissal anytime.
Right To Voluntary Dismissal.
o P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But she must do so before D’s serves an answer or motion for summary judgment.
- If P files a timely notice of dismissal, the case is dismissed “without prejudice,” meaning that P can re-file the case.
o But you only get to do it without prejudice once.
- What if P files a notice of dismissal in the second case? That dismissal is “with prejudice,” meaning P cannot re-file the case
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What are the rules governing Default and Default Judgment in federal court?
When D does not respond to the complaint in time (i.e., 21 days after being served; 60 days from mailing of waiver if waived service), the PLAINTIFF MUST DEMONSTRATE TO THE CLERK THAT D FAILED TO RESPOND IN A TIMELY MANNER. UNTIL DEFAULT IS ACTUALLY ENTERED, D CAN RESPOND BY MOTION OR ANSWER (even beyond the 21 days). If Plaintiff does so convince the clerk, Default is entered. Default Is A NOTATION by the Court CLERK on the Docket Sheet of the Case. The effect of entry of default is that it cuts off D’s right to respond. The P wants to get this on the record in order to cut off D’s right to respond.
ENTRY OF DEFAULT DOESN'T entitle P to recover. Plaintiff NEEDS A DEFAULT JUDGMENT before P can recover.
How To Get A Default Judgment. The CLERK of court can enter judgment if: (1) D made NO RESPONSE at all; (2) The claim itself is for a SUM OF MONEY THAT's CERTAIN; (3) Claimant gives an affidavit (sworn statement) of the sum owed; AND (4) D is not a minor or incompetent.
If any of those are not true, though, then the clerk cannot enter the judgment and P MUST GO TO the JUDGE FOR default judgment to the court. The judge will hold a hearing and has discretion to enter judgment. D gets notice of this hearing only if he appeared in the case.
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What is a Motion to dismiss for failure to state a claim and what is the doctrine for this motion?
(FRCP 12(b)(6)).
This is about whether the case belongs in the litigation stream at all. If P’s complaint fails to state a claim, the case can be dismissed. In ruling on this motion, the court IGNORES P’s LEGAL CONCLUSIONS. It looks only at P’s ALLEGATIONS OF FACT in the complaint & determines, based on those facts, whether Plaintiff would win a judgment. Thus, the court cannot look at evidence, but only the face of the complaint. Plaintiff's facts alleged must support a "plausible" claim and the judge uses his experience and common sense to determine whether it does.
- If the answer is NO, the motion should be granted b/c the law doesn't recognize a claim on the facts. Court may however, let the plaintiff amend the complaint to try to state a claim
- The same motion, if made after D has answered, has a different name, a MOTION FOR JUDGMENT ON THE PLEADINGS.
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When is it proper to consider summary judgment (VERY Generally):
FRCP 56: Plaintiff has stated a claim, and material has been discovered, thus, in the litigation stream of things. However, a trial may not be needed. Trials are only needed to resolve disputes of fact and summary judgment weeds out cases in which there are no disputes of facts and thus a trial is not needed, but the case can be decided as a matter of law.
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Party moving for summary judgment must show:
(1) There is no genuine dispute on a material fact, AND
(2) That she is entitled to judgment as a matter of law.
- No Right for MSJ. If the moving party shows these things, the court has DISCRETION to enter summary judgment. The motion can be for “partial” summary judgment, like on one of the several claims in issue.
- Who Can Move For MSJ. Any party can move for this no later than 30 days of close of discovery.
- Evidence Considered. In summary judgment, the court can look at evidence. The court views the evidence in the light most favorable to the nonmoving party.
- The parties proffer the evidence, usually four things:
(1) Affidavits, OR
(2) Declarations, OR
(3) Deposition testimony, OR
(4) Interrogatory answers.
o Why can these things be considered “evidence”? –Because they are under oath!
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Who Can Move For and when can they move for a Motion for summary judgment?
Any party can move for this no later than 30 days of close of discovery.
167
What evidence does the court consider for a motion for summary judgment?
In summary judgment, the court CAN look at evidence. The court views the evidence in the light most FAVORABLE TO NONMOVING party. The parties proffer the evidence, usually four things:
(1) Affidavits, OR
(2) Declarations, OR
(3) Deposition testimony, OR
(4) Interrogatory answers.
These devices can be considered evidence since they are all under oath.
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The issue is whether the court should sanction the party for spoliation of evidence: (analysis)
Always note that there is a broad range of sanctions in which a court can impose.
In determining appropriate sanctions for spoliation, courts consider both the level of CULPABILITY of the spoliating party & the DEGREE OF PREJUDICE the loss of evidence has caused the other party.
Is it a willful destruction? Does it likely to pose a significant obstacle to the customer’s defense. Any sanctions imposed by the court should be modest.
169
For mandatory disclosures in Discovery, if the party knows about such documents, ESI, or things, but they are not in their custody or control, does that party have to disclose them?
No, it is only things in a party’s control.
170
Essay response for federal court's power to sanction misbehavior:
Federal courts have inherent power to control the litigation process and can sanction misbehavior, including spoliation, even when there has been no specific violation of the Federal Rules of Civil Procedure. The range of available sanctions is broad. It can include such sanctions as the payment of expenses incurred by the other party as a result of the destruction of the evidence, an instruction to the jury authorizing it to draw an adverse inference from the destruction of the evidence, a shifting of the burden of proof on the relevant issue, or even judgment against the responsible party; possibility of dismissal, etc.)
In determining appropriate sanctions for spoliation, courts consider both the level of culpability of the spoliating party and the degree of prejudice the loss of evidence has caused the other party. Many courts impose severe sanctions (such as an adverse-inference instruction or the entry of judgment against the spoliating party) only when there is evidence of bad faith in the form of an intentional effort to hide information One ct said "such as intentional spoliation sanction requires intentional destruction out of desire “to suppress the truth. However, other courts have said that negligence in preserving evidence is enough under some circumstances.
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What if Defendant wants to dismiss the case after he filed an answer? What motion would he make?
The same motion of "Failure to state a claim for which relief can be granted, if made AFTER Defendant has answered, has a different name: MOTION FOR JUDGMENT ON THE PLEADINGS.
172
P sues D for $100,000. What is the most she can recover on a default judgment?
It is 100k. You cannot get more than you pleaded.
173
P sues D for 100k in damages. On default judgment, can the court enter an injunction?
NO on default judgment, a plaintiff cannot get different relief. HOWEVER, IF THE CASE GOES TO TRIAL, P CAN recover more (and a different kind of relief) than she put in her complaint.
174
If the court entered a default judgment against defendant, what is his remedy?
Motions to Set Aside: D may move to have the court set aside a default or default judgment by showing good cause (like excusable neglect) and a viable defense.
175
What are the limitations on depositions?
You cannot take more than 10 depositions or depose the same person 2x without court approval or stipulation.
Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.
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How can you use depositions at trial?
(1) Impeach the deponent;
(2) Any purpose if the deponent is an adverse party;
(3) Any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.
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What can you use as a discovery method that is the only method against an adversary?
Interrogatories: Written questions, to be answered in WRITING under OATH sent to parties ONLY! The party has 30 days from service in which to respond with her answers or objections.
- A party must answer from information within a party’s control. Thus, look it up instead of responding by saying you “don’t know” the answer.
- The maximum number of interrogatories you can send to a party is 25 (unless there is a court order or stipulation for more)
o And that includes subparts, so no more than 25 actual questions.
- If the answers to interrogatories can be found in business records and it would be burdensome to find the answers, the responding party can allow the requesting party to have access to the records.
- At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence at trial.
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What is the timeframe for interrogatories?
The party has 30 days from service in which to respond with her answers or objections.
179
What are the rules/limitations for interrogatories?
The maximum number of interrogatories you can send to a party is 25 (unless there is a court order or stipulation for more)
o And that includes subparts, so no more than 25 actual questions.
- If the answers to interrogatories can be found in business records and it would be burdensome to find the answers, the responding party can allow the requesting party to have access to the records.
- At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence at trial.
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Can you use as evidence your interrogatory answers at trial?
At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence at trial.
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Rules for request for admission?
- This is a written request that someone admit things.
- These can be sent to parties ONLY.
- The responding party has 30 days to respond.
- The responding party can say she does not know the answer only if she says that she has made a “reasonable inquiry”.
o P sends D a request for admission saying, “admit or deny that you were drinking alcohol while driving your car.” If D fails to deny, what happens?—D has admitted it.
- Often used to authenticate documents – “admit or deny that this is the contract.”
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What happens if the party does not know the answer in a request to admit? Who can these be sent to?
These can be sent to parties ONLY.
- The responding party has 30 days to respond.
- The responding party can say she does not know the answer only if she says that she has made a “reasonable inquiry”.
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What is the timeframe for request for admission and what happens if you fail to deny within it?
The responding party has 30 days to respond.
| - The responding party can say she does not know the answer only if she says that she has made a “reasonable inquiry”.
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What is request to produce?
- These request that someone make available for review and copying documents or things, including electronically stored info (ESI), or to permit you to enter designated property to inspect, measure, etc.
- Must respond within 30 days of service, stating that the material will be produced or stating objection.
- A party can make these requests of parties and of nonparties, but you should subpoena the non-party (just like a deposition).
- ESI is to be produced by the requesting party specifying the form.
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Parties Sign Substantive Answers to Discovery under Oath: What does the counsel certify?
- Every discovery request and response is signed by counsel certifying:
(1) It is warranted,
(2) It is not interposed for improper purpose, and
(3) It is not unduly burdensome.
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What is qualified privilege and absolute privilege?
Qualified privilege is work product prepared in anticipation for litigation and is discoverable if party shows
(1) substantial need; and (2) it is not otherwise available.
This is called “qualified work product.”
BUT There is also “absolute work product,” which cannot be discovered and are (1) mental impressions, (2) opinions, (3) conclusions, and (4) legal theories.
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How do you assert privilege or work product?
- If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail.
- You do this in a document that lists the materials protected by date, author, recipient, and privilege or protection claimed.
o It must be in enough detail to allow the judge to determine whether the material is protected. This document is called a privilege log.
- If you inadvertently produce privileged or protected material, you should notify the other party promptly. The other party then must return, sequester, or destroy it pending decision by the court about whether there has been a waiver.
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Ex parte TRO is only proper if:
TEMPORARY RESTRAINING ORDER (TRO).
- Whenever a court does something without giving notice to the other party, it may be called “ex parte.”
o A court can issue a TRO ex parte in limited cases.
- Ex parte TRO is proper ONLY IF:
(1) Applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm;
AND
(2) Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawyer or why such notice should not be required.
- If the court issues the TRO, applicant a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.
- The TRO must state its terms in SPECIFICITY, describe in detail what D must do or refrain from doing, and state why it was issued, and why the threatened injury to P was irreparable.
- If the court issues the TRO, the order must be served on D as soon as possible.
- D’s Options:
o If the court issues the TRO, what can D do—move to dissolve or modify the TRO.
- Timeline:
o TRO is effective for no more that 14 days (or lesser time stated by court).
• If Applicant shows good cause before expiration, it can be extended for up to another 14 days. So a TRO cannot extend beyond 28 days.
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Right to jury trial in federal civil actions?
- Seventh Amendment preserves the right to jury in “civil actions at law,” but not in suits at equity.
- What if a case involves both law and equity? Suppose a case involves a claim for damages (legal relief) and for an injunction (equitable relief). The jury decides the facts underlying the damages claim, but not the equity claim.
- In what order will the trial usually proceed? –We try the jury issues first.
- Does the Seventh Amendment apply in state court? –NO IS DOES NOT APPLY TO THE STATES
- Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issue. If you don’t, you waive the right to a jury.
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Rules for Selection and composition of jury
- In the jury selection process (“voir dire”), each side might want to strike (remove) potential jurors.
- There are Two Kinds of Challenges to Jurors:
(a) “For cause” – e.g., potential juror is biased or prejudiced or related to a party. There is no limit to the number of strikes “for cause.”
(b) “Peremptory” – historically, one did not need to state a reason – you just dismiss the potential juror. There is a limit on the number of these strikes—three per side.
➢ Peremptory strikes may only be used in a race and gender-neutral manner because jury selection is state action.
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- How Many Jurors are on a Civil Jury in Federal Court?
o Minimum 6, maximum 12
o All jurors participate in the verdict unless excused for good cause.
- Six jurors are empaneled and one is excused for good cause because of health problems. Can the remaining five return a verdict? –No, you need at least 6 unless the parties agree otherwise.
- Unless the parties agree otherwise, what jury vote is required for a verdict? –Unanimous—all have to agree
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Rules regarding jury instructions and the procedures therein
- The jury decides facts, but is instructed on the law by the judge.
- Procedure.
o Parties submit proposed jury instructions to the judge at the close of all evidence (or earlier if the court says so).
o Before final argument and instruction, the court informs the parties of what instructions it will give and of its rejection of any proposed jury instructions.
o The parties must be allowed to make specific objections to the instructions and to the rejection of proposed instructions before final argument and instruction.
- Timely Objection. If objections are not made before the jury is “charged” (given the instructions), the party cannot raise a problem with jury instructions on appeal.
o One Exception: you can appeal if jury instructions contained plain error that affects substantial rights.
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Types of jury verdicts
- The judge determines what verdict form the jury will use.
(a) General.
This just says who wins and, if P wins, what the relief is.
(b) Special.
Here, the jury answers specific questions about the facts in dispute. The judge then reaches legal conclusions based on the facts found.
(c) General Verdict with Special Interrogatories.
Here, the jury gives a general verdict but must also answer specific question submitted to it. The questions ensure that the jury considered the important issues.
- When the verdict is returned and if the verdict and answers are consistent, the court enters judgment.
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What types of challenges can be raised to jury verdicts?
Challenges to the Verdict.
(a) Correctable Errors.
If the verdict shows the jury did not follow instructions or if the verdict is internally inconsistent, it can be set aside. Then, the jury can be instructed to reconsider.
Instead of having the jury reconsider correctable errors, the court has the discretion to order an entire new trial.
(b) Juror Misconduct.
The court can set aside the verdict and order a new trial.
A verdict may be “impeached” based upon “extrinsic” matters. So if jurors were bribed, or based the verdict on their independent investigation instead of the evidence at trial, a new trial can be ordered. Jurors may be interviewed or can testify about such abuse – they can be used to “impeach” the verdict.
BUT a verdict will not be impeached on “intrinsic matters.” meaning we cannot inquire into the juror’s mental process.
And a verdict will NOT be set aside if the misconduct was harmless. So if juror had a chat with P during a break in the proceedings, but the chat did not involve the case, it is probably “harmless error.”
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What if the challenge to jury instructions is correctable error?
(a) Correctable Errors.
If the verdict shows the jury did not follow instructions or if the verdict is internally inconsistent, it can be set aside. Then, the jury can be instructed to reconsider.
Instead of having the jury reconsider correctable errors, the court has the discretion to order an entire new trial.
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What if the challenge to jury instructions is juror misconduct?
b) Juror Misconduct.
The court can set aside the verdict and order a new trial.
A verdict may be “impeached” based upon “extrinsic” matters. So if jurors were bribed, or based the verdict on their independent investigation instead of the evidence at trial, a new trial can be ordered. Jurors may be interviewed or can testify about such abuse – they can be used to “impeach” the verdict.
BUT a verdict will not be impeached on “intrinsic matters.” What does that mean? –We cannot inquire into the juror’s mental process.
And a verdict will not be set aside if the misconduct was harmless. So if juror had a chat with P during a break in the proceedings, but the chat did not involve the case, it is probably “harmless error.”
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What are Additur and Remittitur?
- One ground for new trial is excessive or inadequate damages.
o The standard for ordering new trial on this ground: “the damages figure shocks the conscious.”
- But new trial is a lot of work. To avoid a new trial, the court might suggest remittitur or additur.
REMITTITUR: playing hardball with the P.
P suffered minor damage, but the jury awarded $200,000. The court finds the damages figure shocks the conscience. It can order new trial or suggest remittitur. This gives P a choice: take a lesser amount (which the court sets) or go through new trial.
Is remittitur OK in state and federal court?—Yes.
Can the court simply lower the figure that was set by the jury? –No! You must give P the choice.
ADDITUR: playing hardball with the D.
P suffered very serious harm, but the jury awarded only $30,000. The court finds the damages figure shocks the conscience. It can order new trial or suggest additur. This gives D a choice: pay a greater amount in damages (which the court sets) or go through new trial.
Is additur OK in state and federal court?—It is okay in state court, BUT unconstitutional in federal court because it violates the 7th Amendment (this amendment doesn’t apply in state court).
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When can you appeal?
- File notice of appeal in trial court within 30 days after entry of final judgment.
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ARE THESE FINAL JUDGMENTS?: Denial of a motion for summary judgment?
No, because after denying summary judgment, the trial court still has the entire case before it.
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ARE THESE FINAL JUDGMENTS?: Grant of a motion to transfer the case to another district?
No, that doesn’t end the merits.
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ARE THESE FINAL JUDGMENTS?: Grant of a motion to remand to state court?
After removal, now remand, the answer is generally no. There is a special statute about that. This means that there is a severe limitation that allow interlocutory (see B infra).
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ARE THESE FINAL JUDGMENTS?: Denial of a motion for new trial?
Yes, you must appeal within 30 days of that.
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ARE THESE FINAL JUDGMENTS?: Grant of a motion for new trial?
No, because the trial court must hold the new trial.
