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Flashcards in Civil Procedure Deck (182):

Six areas of importance in civil procedure:

1. Right court (personal jurisdiction, subject matter jurisdiction, venue); 2. Learning about the case (service of process, pleadings, discovery); 3. complex cases (party joinder); 4. adjudication (pretrial, trial); 5. appellate review (appeal); 6. preclusion (claim and issue preclusion).


Personal Jurisdiction is what?

The court's power over the parties. Not power over the case.


Personal Jurisdiction involves what one question?

Can P sue D in this state? That's all. It is not concerned with what COURT we go to in that state--that is subject matter jurisdiction.


Whether there's personal jurisdiction is a two-step analysis:

1. Satisfy a statute (e.g., a state long arm statute), AND 2. Satisfy the Constitution (Due Process). On the bar exam the constitution is the important issue.


Is the analysis for whether there is personal jurisdiction different depending on whether the case will be filed in federal court or state court?

No. Exactly the same.


What is In personam jurisdiction?

Plaintiff wants to impose a personal obligation on defendant. Jurisdiction is over the person, not her property, because of some contact between defendant and the forum state.


What is the statutory analysis for in personam jurisdiction?

State statutes allow personal jurisdiction over defendants who 1. are served with process in the state, or 2. are domiciled in the state, or 3. do certain things (e.g., commit a tortious act, conduct business) in the state. Pennsylvania statutes reach the constitutional limit.


Constitutional analysis for personal jurisdiction:

Does the defendant have such minimum contracts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice?


With regard to personal jurisdiction constitutional analysis, what are the easy cases? (3)

1. Domiciled in the forum; 2. Consents; 3. Is present in the forum when served with process (at least if not tricked into forum).


What is the key to constitutional analysis of personal jurisdiction on more complicated cases?

The key is to assess a set of factors under three headings: 1. contact, 2. relatedness, 3. fairness


Contact for personal jurisdiction purposes means what?

There must be relevant contact between the defendant and the forum state.


What are the two factors to be addressed with regard to contact for personal jurisdiction analysis?

1. The contact must result from purposeful availment: Defendant's voluntary act. In other words, the defendant must reach out to the forum. Examples: maybe she tried to make money in forum, or she uses the roads there, or she causes some effect in the forum. 2. Foreseeability: it must be foreseeable that she would get sued in the forum.


What is the analysis of relatedness entail for personal jurisdiction?

There must be relatedness between the contact and the plaintiff's claim. In other words, does plaintiff's claim ARISE FROM the defendant's contact with the forum.


What is specific personal jurisdiction?

If the plaintiff's claim arises from the defendant's contact with the forum, the court might uphold jurisdiction even if the defendant does not have a great deal of contact with the forum.


What is general personal jurisdiction?

If the claim does not arise from defendant's contact with the forum, the jurisdiction is only ok if the court has general jurisdiction. Then the defendant can be sued there for a claim that arose anywhere in the world.


How does the court have general jurisdiction over the defendant?

Defendant must have continuous and systematic ties with the forum so that the defendant is essentially at home in the forum.


Examples of being "essentially at home in the forum"

1. natural person: where domiciled; 2. business: where formed and at it's principle place of business. Essentially at home cannot be based on sales or purchases within the forum. So must have actual presence in the forum.


What does the analysis of fairness entail for personal jurisdiction?

Assess whether jurisdiction would be fair or reasonable under the circumstances.


What are the fairness factors for personal jurisdiction analysis?

1. Convenience; 2. State's interest; 3. Plaintiff's interest.


What is the standard for analyzing convenience for personal jurisdiction?

The forum is ok unless it puts defendant at a SEVERE disadvantage in the litigation. Almost impossible to show. Due process does not guarantee the most convenient forum at all.


What should you always mention when talking about the state's interest in a fairness analysis of personal jurisdiction?

Always mention the state's interest in providing forum for its citizens.


What is the summary of the constitutional test for personal jurisdiction?

1. Contact: Purposeful availment, foreseeability; 2. Relatedness: general v. specific; 3. Fairness: convenience, state's interest, plaintiff's interest. THERE IS NO RIGHT ANSWER--JUST DO THE ANALYSIS BY ASSESSING EACH FACTOR AND COME TO A REASONABLE CONCLUSION


What is subject matter jurisdiction?

A court's power over the case.


Federal courts can only hear certain types of suits.

1. diversity of citizenship; 2. federal question


What are the two requirements of diversity of citizenship cases?

1. The case is either (a) between "citizens of different states" (diversity) or (b) between "a citizen of a state and a citizen of a foreign country (alienage)" AND 2. The amount in controversy exceeds $75,000.


Complete diversity rule:

No diversity if any plaintiff is a citizen of the same state as any defendant.


What constitutes citizenship for a natural person who is a US citizen?



What two factors is domicile established by?

1. Presence in the state; 2. intent to make it her permanent home (e.g., paying in state tuition, registering to vote)


Can a person have more than one domicile at a time?



What is the effect of a person changing citizenship before or after a case is filed?



What is the citizenship of a corporation consist of?

Citizenship equals 1. state where incorporated AND 2. the one state where the corporation has its principal place of business. So a citizen of two states.


What is the corporation's principal place of business?

Where the managers direct, control, and direct corporate activities. Called the nerve center and usually called the headquarters.


Unincorporated association, like partnership, LLC: what is the citizenship?

Use the citizenship of all the members, including general and limited partners. So do not care about where the business was formed or where it has its principle place of business.


What about citizenship of decedents, minors, or incompetents?

Use their citizenship, not the citizenship of their representative.


Trick question for amount in controversy:

$75,000 is not sufficient. Must exceed $75,000.


What if it is doubtful whether the plaintiff's claim actually exceeds $75,000?

Whatever a plaintiff claims in good faith is OK unless it is CLEAR TO A LEGAL CERTAINTY that she cannot recover more than $75,000.


What if the plaintiff sues for more than $75K but only recovers less than $75K. Is jurisdiction ok?

Yes, what she wins is irrelevant to jurisdiction. But a plaintiff who wins less than $75K may have to pay defendant's litigation costs.


Aggregation means what?

Adding two or more claims to meet the amount requirement. We aggregate plaintiff's claims if we have one plaintiff and one defendant.


For joint claims (joint tortfeasors) what is the aggregation rule?

For joint claims, use the total value of the claim. Irrelevant what the number of parties is. How do you know if it is a joint claim? Look for the word "joint."


Equitable relief (injunction): two tests to determine if over $75K.

1. Plaintiff's viewpoint: does it decrease the plaintiff's property by more than $75K?; 2. Defendant's viewpoint: would it cost defendant more than $75K to comply with the injunction?


What will a federal court not hear?

Actions involving issuance of divorce, alimony, or child custody decree or to probate an estate.


What is a federal question case?

Complaint must show a right or interest founded substantially on a federal law (e.g., federal constitution, legislation). The claim "arises under" federal law. Citizenship of the parties and the amount in controversy is not relevant.


What is the "well pleaded complaint" rule?

It is not enough that some federal issue is raised by the complaint. The plaintiff's claim itself must "arise under" federal law. So we look at the claim and ignore other material plaintiff alleged. Ask one question: IS PLAINTIFF ENFORCING A FEDERAL RIGHT? If yes, then federal question case.


Test you must do for every single claim in a federal case?

Test every single claim for diversity or federal question.


What is supplemental jurisdiction?

Works only after a case is already in federal court (through diversity or FQ). The additional claim might be able to get in if it meets supplemental jurisdiction test.


Supplemental jurisdiction test:

The claim that we want to get into federal court must share a "common nucleus of operative fact" with the claim that invoked federal subject matter jurisdiction. This test is ALWAYS met by claims that arise from the same transaction or occurrence as the underlying claim.


What is a limitation of supplemental jurisdiction?

In a diversity case, the plaintiff cannot use supplemental jurisdiction to overcome a LACK OF DIVERSITY. You can use it to overcome a lack of amount in controversy in a diversity case.

But plaintiff can use supplemental jurisdiction to overcome a lack of diversity for a claim in a FQ case.


SOLID GOLD SUMMARY: to be heard in federal court

A non-federal, non-diversity claim can be heard in federal court if it meets "the test" (transaction or occurrence) UNLESS it is: a. Asserted by the plaintiff; b. In a diversity of citizenship (not FQ) case AND c. Is against a citizen of the same state as the plaintiff.


Court has discretion NOT to hear supplemental claims if:

1. the federal question is dismissed early in the proceedings; 2. the state law claim is complex; 3. state law issues would predominate.


What is removal?

A defendant sued in state court might be able to "remove" the case to federal court. Removal is a one-way street -- it transfers a case ONLY from a state trial court to a federal trial court. If removal was improper, the federal court can "remand" to state court.


When can one remove?

Within 30 days after SERVICE of the first paper that makes the case removable. You get a new 30 days from service on a new defendant.


Who can remove?

All defendants served with process must join in order to remove. Plaintiff can NEVER remove.


What kinds of cases can be removed?

It is one that would meet the requirements on diversity or federal question. TWO BIG EXCEPTIONS (but only in diversity cases): 1. No removal if any defendant is a citizen of the forum. 2. There is no removal no more than one year after the case was filed in state court.


Where do we remove to?

To the federal district embracing the state court where it was filed.


Procedure for removal:

D files notice of removal in federal court, stating grounds of removal; signed under Rule 11; attach all documents served on D in state action; copy to all adverse parties; Then file copy of notice in state court.


Erie Doctrine: black letter law

In diversity cases, the federal court must apply state substantive law.


Erie Doctrine: analysis

1. Is there a federal law on point that directly conflicts with state law? If so apply the federal law, as long as it is valid. This is based on the Supremacy Clause. How do you know if a FRCP is valid? It is arguably procedural.

2. If there is no federal law on point, ask: is this issue one of the easy ones: 1. elements of a claim or defense; 2. statute of limitations; 3. rules for tolling statutes of limitations; and 4. conflicts (or choice) of law rules. Why are these easy? They are substantive. You must use state law in these.

3. If there is no federal law and the issue is not an easy one, but the federal judge wants to ignore the state law? If the issue is substantive, she must follow state law.


Three tests to determine whether substantive law?

1. outcome determinative: would applying or ignoring the state rule affect outcome of case? If so, it's probably a substantive rule, so should use state law. 2. balance of interests: does either federal or state system have strong interest in having its rule applied? 3. avoid forum shopping: if the federal court ignores the state law on this issue, will it cause parties to flock to federal court? If so, then should probably apply state law.



Subject matter jurisdiction told us we can take a case to federal court. Venue tells us exactly which federal court.


Plaintiff may lay venue in any district where:

1. all defendants reside (in cases where all defendants reside in different districts of the same state, plaintiff can lay venue in the district in which any of them reside; 2. a substantial part of the claim arose


Where does a human reside for venue purposes?

In the district where domiciled.


Where does a business reside for venue purposes?

In all district where subject to personal jurisdiction for this case.


Transfer of venue is what?

A federal district court can transfer the case to another federal district court: but can only transfer to a district where case could have been filed (exception: the court can transfer to any district at all if the parties consent and if it finds cause for the transfer).


What factors does a court look at in making a decision to transfer?

Public and private factors showing that the other court is the center of gravity. Public factors: what law applies, what community should be burdened with jury service, keeping local controversy in the local court. Private factors: convenience--where are the witnesses and the evidence.


What is the policy reason for a court to resist transferring venue?

A transfer overrides Plaintiff's choice of forum.


If a court transfers venue to a different state, what law is used?

The transferee court applies the choice of law rules of the original court.


What happens if venue in the original district is improper?

The court may transfer in the interest of justice or it may dismiss.


What is forum non conveniens?

There is another court that is far more sensible than the present one, but the court does not transfer to that court because the more convenient court is a different judicial system (e.g., a foreign country. The case is dismissed or stayed. A decision to dismiss or stay a case under this analysis uses the same public and private factors as a transfer decision does. This requires a very strong showing. Forum Non Conveniens is almost never granted if the plaintiff is a resident of the present forum. The other court must be adequate. All we care about is that she gets a day in court--not whether she would get a bigger judgment in the US court.


What is service of process?

Must give notice to defendant by delivering 1. a summons and 2. a copy of the complaint.


Process: definition

Summons and a copy of the complaint.


Who can serve process?

Any nonparty who is at least 18 years old. Does not have to be appointed by a court.


How is process served?

1. personal service; 2. substituted service; 3. Service on defendant's agent; 4. state law (can use methods of service permitted by state law where the federal court sits or where service is affected.)


What is personal service?

Papers given to the defendant personally and can be given anywhere.


What is substituted service?

Served at defendant's usual abode and given to another person of suitable age and discretion who RESIDES there. (example: summer home in the summer, so common sense that he abides there during the summer)


What is waiver by mail?

Mail to the defendant a copy of the complaint and two copies of a waiver form with a prepaid means of returning the form. If defendant executes an mails the waiver form to plaintiff within 30 days, defendant waives service. Then the plaintiff files the waiver form with court. If the defendant does not return the waiver form, and the plaintiff has to serve personally, the defendant must pay the service costs.


How does one serve later papers, such as answer, other pleadings, motions, etc. on the other party?

We serve by delivering or mailing the documents to the party's attorney (or pro se party). If mailed, add 3 days for any required response. Can email if the party consented to that.


Every time you look at PLEADINGS you must look at what rule?

Rule 11


What is Rule 11?

Requires attorney (or party representing herself, called a pro se party) to sign all pleadings, written motions and papers (except discovery document, which are treated by another rule).


What do you certify under Rule 11 when you sign a pleading, written motion, and papers?

When you sign it, you certify that to the best of your knowledge and belief, after reasonable inquiry: 1. The paper is not for an improper purpose; 2. Legal contentions are warranted by law (or nonfrivolous argument for law change), and 3. That factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation.)


What is the rule about Rule 11 sanctions?

Sanctions may be levied (they are discretionary) against attorney, firm, or party. Rule 11 sanctions are not to punish, but to DETER bad conduct. The sanctions can be NONMONETARY. Monetary sanctions are often paid to the court, not the other party. Before imposing sanctions, court ALWAYS must give a chance to be heard.


If other party violates Rule 11 what do you do?

Serve the motion on the other party, but cannot file it for 21 days, giving other party safe harbor in order to correct the problem. If problem not corrected, then you can file the motion.


If the court raises a Rule 11 problem, what is this called?

Sua sponte. But must give chance to be heard.


What commences an action?

Filing the complaint.


What are the requirements of 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.


What is the new standard for how much detail must be in the complaint?

You must plead facts supporting a plausible claim. To determine plausibility, the judge uses her own experience and common sense.


What 3 matters must be pleaded with PARTICULARITY OR SPECIFICITY?

1. Fraud; 2. Mistake; 3. Special damages.


What does Rule 12 require?

Requires defendant to respond in one of two ways: 1. by motion or 2. by answer. Must respond within 21 days.


Under Rule 12, what is a motion?

Motions are not pleadings; they are requests for a court order.


What are the two kinds of motions?

1. Issues of form; 2. Rule 12(b) defenses.


What is a motion regarding issues of form?

1 motion for more definite statement; 2. motion to strike, which is aimed at immaterial things (e.g., demand for jury when no right exists); any party can bring.


What is a motion regarding Rule 12(b) defenses? (also can be put in the answer)

1. lack of subject matter jurisdiction; 2. lack of personal jurisdiction; 3. improper venue; 4. insufficiency of process (problem with the papers); 5. insufficient service of process; 6. failure to state a claim; 7. failure to join indispensable party. MUST KNOW THIS LIST


Which of the Rule 12(b) defenses are called "waivable"?

2, 3, 4, and 5. The waivable ones must be put in the first Rule 12 response, motion or answer, or else they are waived. The other two can be raised any time during trial. Subject matter jurisdiction is never waived and can be raised even after the trial.


What are the rules regarding the Answer?

The Answer is a pleading and must be served within 21 days after service of process. But if defendant made a Rule 12 motion, and it is denied, she must serve her answer within 14 days after court rules on motion.


What do you do in the Answer?

I. Respond to allegations of complaint: 1. admit; 2. deny; 3. state that you lack sufficient information to admit or deny. Cannot use number 3 if the info is public knowledge or is in the defendant's control. Failure to deny can constitute an admission on any matter except damages.

II. Raise affirmative defenses: These inject a new fact into the case, that will allow defendant to win. Classic affirmative defenses are statute of limitations, statute of frauds, res judicata, self-defense. Must PLEAD affirmative defenses or you risk waiving it.


What is a counterclaim?

A claim against an opposing party and is part of the defendant's answer.


Two types of counterclaims?

1. Compulsory; 2. Permissive


What is a compulsory counterclaim?

arises from the same T/O as Plaintiff's claim. MUST BE FILED IN THE PENDING CASE OR IT IS WAIVED. This is the only compulsory claim in the world. No other claim must be filed in the pending case.


What is a permissive counterclaim?

Does not arise from the same T/O as a plaintiff's claim. You may file it with your answer or can assert it in a different case.


If a counterclaim is procedurally ok, what is the next analysis that you need to do?

Assess whether it invokes diversity or FQ jurisdiction. If so, then it is OK in federal court. If not, then try supplemental jurisdiction.


What is a cross claim?

A cross claim is a claim against a co-party and it must arise from the same T/O as the underlying action. The crossclaim is permissive; you do not have to file it in this case.


What is the broad rule regarding joining claims?

Once you file a claim, you can join any other claim to it, but that claim must invoke subject matter jurisdiction (diversity, federal question, or supplemental jurisdiction.)


Right to amend rule:

Plaintiff has a right to amend once within 21 days after defendant serves her first rule 12 response. Defendant has a right to amend once with 21 days after serving his answer.


If there is no right to amend, then what do you do?

Seek leave of court and it will be granted if "justice so requires." Factors that a court looks at in ruling on this: 1. DELAY; 2. PREJUDICE; 3. FUTILITY OF AMENDMENT.


Variance: define

Where the evidence at trial does not match what was pleaded. If defendant doesn't object, at or after trial, plaintiff can move to amend the complaint to conform to the evidence. This ensures that the pleading match what was actually tried. If the defendant objects, then kept out.


Amendment after statute of limitations has run:

Relation back: amended pleadings "relate back" if they concern the same conduct, transaction or occurrence as the original pleadings. So it can avoid a statute of limitations problem.


Required disclosures:

These materials must be produced even though no one asks for it. 1. Initial disclosures; 2. Experts; 3. Pretrial.


Initial disclosures: discovery rule

Unless court order or stipulation of parties differs, in most cases, within 14 days of the Rule 26(f) conference, must identify persons, electronically stored info, and documents that are "likely to have discoverable information that the disclosing party may use to support its claims or defenses," computation of damages and insurance for any judgment.


Experts: discovery disclosure rule

As directed by court, must identify experts "who may be used at trial" and produce written report containing opinions, data used, qualifications, compensation for study, etc. Drafts of that report are work product.


Pretrial: discovery disclosure rule

No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition.


What are the discovery tools and when can they be used?

1. Depositions; 2. Interrogatories; 3. Request to produce; 4. Physical or mental examinations; 5. Requests for admission; 6. Party signatures; 7. duty to supplement.

Can only be used after Rule 26(f) conference unless court order or stipulation allows.


What is the key issue with discovery tools which can be used to get information from nonparties?

Can depose nonparties but must be subpoenaed or not compelled to attend. Subpoena can be "duces tecum". Also, can make request to produce, but must be accompanied by a subpoena. Unless she agrees, a nonparty cannot be required to travel more than 100 miles from her residence or place where she regularly transacts business. Notice of a subpoena to a business may require it to designate the right person for deposition.


Depositions: rules for taking a deposition

1. questions can be oral or written, but if written must be read by court reporter. Deponent gives sworn oral answers to questions by counsel (or pro se parties). Recorded by sound or video or stenographically and a transcript can then be made. Cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.


Deposition: rules for using a deposition 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 the absence was procured by the party seeking to introduce the evidence.


Interrogatories: rules

Questions propounded in writing to ANOTHER PARTY, to be answered in writing under oath. Must respond with answers or objections within 30 days. Can say you don't know, but only after reasonable investigation; if the answer could be found in business records and it would be burdensome to fined it, can allow access to records. At trial, cannot use your own answers; others may be used per rules of evidence. Cannot serve more than 25 (including subparts) without court order or stipulation.


Requests to produce: rules

Requests to another party (or nonparty if accompanied by subpoena) requesting that she make available for review and copying various documents and things, including electronically stored info (ESI), or permit entry upon designated property for inspection, measuring, etc. Specify form in which ESI is to be produced (hard copy or electronic). Must respond within 30 days of service, stating that the material will be produced or stating objection.


Physical or mental examination: rules

Only available through court order on showing that party's (or person in party's control, e.g., parent in control of child) health is in actual controversy and "good cause" (i.e., you need it and can't get it elsewhere). Party seeking the order chooses the suitably licensed person to perform the exam. Person examined may obtain copy of report simply by asking for it, but by doing so waives his doctor-patient privilege re reports by his doctor re that condition.


Request for admission: rules

A request by one party to another to admit the truth of any discoverable matters. Often propounding party will send copies of documents to be authenticated with the request. Must respond within 30 days of service. The response is to admit or deny; can indicate lack of information only if indicate make a reasonable inquiry. Failure to deny is an admission; amend if failure not in bad faith.


Party signature: rules

Parties sign substantive answers to discovery UNDER OATH. Every discovery request and response is signed by counsel certifying (1) it is warranted, 2. not interposed for improper purpose, and 3. not unduly burdensome.


Duty to supplement: rules

If after a response things change so that your response was incomplete or incorrect, you have a duty to supplement.


Scope of discovery: standard

Anything relevant to a claim or defense. Relevant here is broader than it is at trial: includes things that are reasonably calculated to lead to admissible evidence. That is broader than admissible. You cannot discover communications protected by privilege.


Work Product: aka and definition

Trial preparation materials; materials prepared in anticipation of litigation. Generally protected from discovery.


When can work product be obtained in discovery?

1. If opposing party shows substantial need and 2. it is not otherwise available.


What work product is absolutely protected?

Mental impressions, opinions, conclusions, and legal theories.


Does work product have to be generated by a lawyer to be privileged?

No, can be generated by anybody working on the case.


If you claim privilege or work product, you must do what?

Produce a privilege log. If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and particularly describe the materials. Must list the document by date, author, recipient, privilege, etc.


If you inadvertantly produce documents that are privileged, what do you do?

Notify the other party as soon as possible. The other party then has to return, sequester, or destroy it pending decision by the court about whether there has been a waiver.


What are the three main ways that discovery problems go to court?

1. protective order; 2. partial violation; total violation


When will a party seek a protective order?

Responding party seeks protective order (e.g., request is overburdensome, or involves trade secrets and we want an order limiting disclosure to the litigation, ESI is not reasonably accessible (deleted files), or request seeks work product.


What is a partial violation of discovery?

Receiving party answers some and objects to others. If the objections are not upheld, this is a partial violation, so we expect a light sanction.


What is a total violation of discovery?

Receiving party fails completely to attend deposition, respond to interrogatories, or to respond to requests for production. This is a total violation, so we expect a heavy sanction.


What is the rule regarding sanctions for enforcing discovery rules?

The party seeking sanctions must certify to the court that she tried in good faith to get the information without court involvement.


What are the two steps of the analysis for a partial violation of discovery?

1. You can 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 we get RAMBO sanctions plus costs (and attorney's fees for bringing the motion) and could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam.


What are the steps of the analysis for a total violation of discovery?

No need to get an order compelling answers. Go directly to RAMBO plus costs (and attorney's fees re the motion):


What are RAMBO sanctions choices available to the judge?

1. Establishment order (establishes facts as true); 2. Strike pleadings of the disobedient party (as to the issues re the discovery); 3. Disallow evidence from the disobedient party (as to issues re the discovery); 4. Dismiss plaintiff's case (if bad faith shown); 5. Enter default judgment against defendant (if bad faith shown).


Party joinder: who MAY be joined.

Proper defendants and plaintiffs. Co-plaintiffs: yes if their claims arise from the same transaction or occurrence AND they raise at least one common question.
Co-defendants: yes, if the claims against them arise from the same transaction or occurrence AND raise at least one common question. Then with these parties, assess whether case invokes subject matter jurisdiction.


Necessary and indispensable parties: rules

A nonparty who is forced to join the case because they are necessary or required:
A necessary person (absentee) is one who meets any of the following tests:
1. Without A, the court cannot accord complete relief among existing parties (worried about multiple suits);
2. A's interest may be harmed if he isn't joined (practical harm);
3. A claims an interest which subjects a party (usually defendant) to a risk of multiple obligations.

Most likely question on the exam: test 2
Trick question: are joint tortfeasors necessary--never, supreme court has said so.


Once you determine that a nonparty is necessary, you must determine what?

You must determine whether the joinder is feasible: 1. Check to see if there is personal jurisdiction over the nonparty; 2. check to see if joining him will destroy diversity.


What if a necessary party cannot be joined?

The court must do one of two things: 1. proceed without person; 2. dismiss the entire case. The court will look at the following factors: 1. is there an alternative forum available; 2. what is the actual likelihood of prejudice; 3. can the court shape relief to avoid that prejudice. If the court decides to dismiss, you call the party indispensable.


Joinder rules that start with "C" (counterclaim and crossclaim) are what?

claims between present parties.


Joinder rules that start with "I" (impleader, intervention) are what?

Involve someone new to the case.



Third party practice. A defending party wants to bring somebody new, because the third party defendant may owe INDEMNITY or CONTRIBUTION to the defending party on the underlying claim. There is a right to implead within 14 days of serving answer; after that, need court OK.


Steps for impleading the third party defendant in the pending case:

1. File third party complaint naming person at third party defendant; and 2. serve process on the third party defendant (so must have personal jurisdiction over the third party defendant). After the third party defendant is joined, may plaintiff assert a claim against the third party defendant? Yes, if the claim arises from the same transaction or occurrence as the underlying case. After the third party defendant is joined, may the third party defendant assert a claim against the plaintiff? Yes, if the claim arises from the same transaction or occurrence as the underlying case. Just remember to assess each claim separately for subject matter jurisdiction. Try diversity and federal question. If neither works, try supplemental.



Absentee wants to join a pending suit. She chooses to come in either as plaintiff or as a defendant. The court may realign her if it thinks she came in on the "wrong" side. Application to intervene must be "timely." Must assess claim by/against intervenor for subject matter jurisdiction.


Intervention of right:

A's interest may be harmed if she is not joined and is not adequately represented now (Similar to test 2 for necessary parties.)


Permissive intervention:

A's claim or defense and the pending case have at least one common question. Discretionary with court; OK unless delay or prejudice.


Class Action:

Representative sues on behalf of a group.


Initial requirements for class action:

Must demonstrate ALL four of these: 1. Numerosity: Too many class members for practicable joinder; 2. Commonality: There are some questions of law or fact in common to class; 3. Typicality: Representative's claims/defenses typical of those of the class; and 4. Representative adequate: The class representative will fairly and adequately represent class.


Class action: must fit the class into one of three types:

1. Prejudice (RARE); class treatment necessary to avoid harm either to class members or to the non-class party. An example is many claimants to a fund. Individual suits might deplete the fund, leaving some without remedy. 2. Injunction or declarative judgment (NOT DAMAGES) sought because the class was treated alike by another party. Example, employment discrimination. 3. Damages (MOST LIKELY); must show two things: 1. common questions predominate over individual questions AND 2. class action is the superior method to handle the dispute. Example: mass tort.


Certification of class:

The court mus determine "at an early practicable time" whether to "certify" the case to proceed as a class action. If the court certifies the class, it must "define the class and the class claims, issues, or defenses. Then the court must appoint counsel who it believes can fairly and adequately represent the interests of the class.


What must the court do where the class is a Type III class (damages):

notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. The notice tells them various things, including: 1. they can opt out; 2. they'll be bound if they don't; 3. they can give a separate appearance through counsel. Who pays to give the notice: the rep.


Is notice required in a Type 1 or Type 2 class action?

No. Only required in Type 3.


Who's bound by the judgment in a class action?

All members except those who opt out of a Type 3.


Can the parties settle or dismiss a certified class action?

Yes, but only with court approval. And in all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed. If it's a Type 3 class, the court might give members a second chance to opt out.


Subject matter jurisdiction and class action:

The class could invoke federal question jurisdiction. But for diversity of citizenship you consider only the rep (ignore other class members' citizenship). For amount in controversy the rep's claim must exceed $75K.


Class Action Fairness Act:

CAFA: an easier way to get a class action into court. This grants subject matter jurisdiction separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action (of at least 100 members) if ANY class member (not just the representative) is of diverse citizenship from ANY defendant and if the aggregated claims of the class exceed $500K. It makes it easier for interstate class actions to go to federal court.


Pretrial adjudication: 2 ways

1. Failure to state a claim; 2. Summary Judgment.


Failure to state a claim:

Under FRCP 12(b)(6), defendant moves to dismiss for failure to state a claim. It tests only the sufficiency of plaintiff's allegations. The court ignores legal conclusions and looks at allegations of fact. It asks this question: if these facts were true, would the plaintiff win a judgment? If the answer is no, there is no sense letting the case proceed, because the law does not recognize a claim on these facts. Court might let the plaintiff amend to try to state a claim. In ruling on this motion, does the court look at evidence? No, it looks at the face of the complaint. Remember that the facts alleged must support a plausible claim and the judge uses her own experience and common sense to see if they do. The same motion made after the defendant has answered has a different name: motion for judgment on the pleadings.


Summary judgment:

Must show 1. no genuine dispute on a material fact and 2. that she is entitled to judgment as a matter of law. Move within 30 days of close of discovery. Can be for "partial" judgment (e.g., on an issue or claim). In summary judgment, the court can look at evidence. The parties proffer the evidence, usually affidavits, or declaration, deposition testimony or interrogatories (all under OATH). Pleadings are not evidence (unless "verified" and that is very rare). But pleadings may be relevant under summary judgment if defendant failed to deny an allegation, that can be treated as a fact. Summary judgment weeds out cases where we don't need a trial. A trial is needed to resolved disputes of fact.


Pretrial conference:

The court may hold a pretrial conference to process the case and foster settlement. The final pretrial conference determines issues to be tried and evidence to be proffered. This is recorded in a pretrial conference order, which supersedes the pleadings. The final pretrial conference order is an important document -- it is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. This means there is no surprises at trial.


Right to jury trial in federal court:

7th Amendment; preserves the right to a jury in civil actions at law, but not is suits at equity.


What if a case involves both law and equity? (Damages and injunction).

The jury decides the facts underlying the damages claim. But not the equity claim. Will determine all the damages issues first. Then try the equity issues to the judge.


How do you get a jury?

Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issue.


Voir dire

jury selection process; no limit on the number of strikes for cause; each side gets three preemptory strikes because jury selection is state action and cannot use race or gender for a reason for preemptory strike. Must give reason for preemptory strike.



Motion for judgment as a matter of law: This is an exceptional order, the effect of which is to take the case away from the jury. Can only be brought after the other side has been heard at trial. (USED TO BE CALLED DIRECTED VERDICT)


Standard for granting JMOL:

Reasonable people could not disagree on the result. Court views evidence in the light most favorable to the nonmoving party.



Same as JMOL, but comes up after trial. Situation: judge did not grant JMOL and the case went to the jury. It returns a verdict for one party, and the court enters judgment on the basis of the verdict. Now the losing party files a renewed motion for JMOL. If RJMOL is granted, the court enters judgment for the party that lost the jury verdict. Move within 28 days after entry of judgment.


Standard for granting RJMOL

Reasonable people would not have reached the result that the jury reached. Court views the facts in the light most favorable to the nonmoving party.


What is an absolute prerequisite to bringing RJMOL.

You must have moved for JMOL at a proper time at trial.


Motion for a new trial:

Judgment entered, but errors at trial require a new trial. Something happened that makes the judge think the parties should start over and re-try the case. Move within 28 days after judgment.


What are the grounds for a new trial?

1. Prejudicial error at trial makes judgment unfair; 2. new evidence that could not have been obtained with due diligence for the original trial; 3. prejudicial misconduct of party or attorney or third party or juror; 4. judgment is against the weight of the evidence.


Final judgment rule:

As a general rule, can appeal only from final judgments, which means an ultimate decision by the trial court of the merits of the entire case. File notice of appeal in trial court within 30 days after entry of final judgment. To determine if it is a final judgment ask: After making this order does the trial court have anything left to do on the merits of the case? If so, its not final.


Interlocutory (non-final) review:

May be appealable even though not final judgments. (class action: court of appeals has discretion to review an order granting or denying certification of a class action. must seek review at the court of appeals within 14 days of order)


Claim Preclusion:

Whenever there has been an earlier case, watch for these issues, which concerns the preclusive effect of a prior judgment on the merits. The question is whether a judgment already entered precluded litigation of any matter in another case.


Claim preclusion is also called:

res judicata


Claim preclusion requires:

1. Must show that case 1 and case 2 were brought by the same claimant against the same defendant. 2. Case 1 ended in a valid final judgment on the merits (general rule is: unless the court said otherwise when it entered the judgment, any judgment is "on the merits" UNLESS it was based on jurisdiction, venue, or indispensable parties. 3. Case 1 and case 2 asserted the same claim. Majority view (and PA) is that a claim is any right to relief arising from a transaction or occurrence.


Issue preclusion:

Precludes relitigation of a particular issue litigated and determined before. That issue is deemed established in second action, so it cannot be relitigated.


Issue preclusion is also called:

collateral estoppel


Issue preclusion requirements:

1. Case 1 ended in a valid, final judgment on the merits; 2. The same issue was actually litigated and determined in Case 1; The issue was essential to the judgment in Case 1. Without this issue the judgment in Case 1 would have been different.


Against whom can issue preclusion be asserted?

Only against somebody who was a party to Case 1. (This is required by Due Process.)


By whom can issue preclusion be asserted?

1. Starting point (mutuality): only by one who was a party to Case 1. THIS IS NOT REQUIRED BY DUE PROCESS, AND SOME COURTS HAVE REJECTED IT TO ALLOW "NONMUTUAL" ASSERTIONS OF ISSUE PRECLUSION. 2. Nonmutual defensive issue preclusion: just means the one using it was not a party in Case 1 and is a defendant in Case 2.


Issue preclusion requirements:

1. Did case 1 end in a valid, final judgment on the merits? 2. Was the same issue litigated and determined in Case 1? 3. Was the issue essential to the judgment in Case 1?; 4. Is issue preclusion being asserted against one who was party to Case 1?; 5. But, is it being asserted BY someone who was NOT party to Case 1. Under mutuality rule, could not be done. Most court today allow this if the person had a full chance to litigate in case 1.


Nonmutual offensive issue preclusion:

Just means the one using it was not a party in Case 1 and is the plaintiff in Case 2. Same analysis as nonmutual defensive issue preclusion for steps 1-4. Step 5: Most courts will say no, but will allow it if it is not unfair. Factors: 1. had a full and fair opportunity to litigate in Case 1; could foresee multiple suits; plaintiff could not have joined easily in Case 1.; and