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Bar Exam > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

Jurisdiction

A

the authority of a court to hear a case and enter a binding judgment
2 types:
personal jurisdiction
subject matter jurisdiction

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2
Q

Personal Jurisdiction

A

the power of the court over persons or property derives from the defendant’s contacts with the court
two part analysis:
1. state long-arm statute: does the state law give power over the D?
2. federal due process: does the state’s exercise of power over the D meet the constitutional requirements?`

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3
Q

Ohio state statutory requirement: general jurisdiction

A

jurisdiction exists regardless of the D’s contacts to Ohio

  1. presence: as long as the D is physically present in state when served process
  2. domicile
  3. incorporation in ohio
  4. consent: express (through contract, appoint an agent to receive service of process in OH) implied (file a claim, appear at a proceeding and do not timely object)
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4
Q

Ohio: specific jurisdiction

A

long arm statute provides for jurisdiction over the D outside of the state if the claims asserted relate to one of the following contacts with ohio

  1. transacting any business in ohio
  2. contracting supply services in ohio
  3. causing tortious injury anywhere by an act or omission in ohio
  4. causing tortious injury in ohio by an act or omission outside of ohio
  5. causing injury in ohio by breach of warranty made in the sale of goods outside of ohio
  6. having an interest in, using, or possessing real property in ohio
  7. contracting to insure any person, property or risk located in ohio at the time of contracting
  8. living in a martial relationship in ohio
  9. causing (intentional) tortious injury to any person in ohio by an act outside ohio
  10. causing tortious injury to any person is a criminal act if:
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5
Q

causing tortious injury in ohio by an act or omission outside of ohio

A

if the defendant:

  1. regularly does or solicits business in ohio
  2. engages in any persistent course of conduct in ohio or
  3. derived substantial revenue from goods used or consumes or services rendered in ohio
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6
Q

causing injury in ohio by breach of warranty made in the sale of goods outside of ohio

A

if:

  1. the defendant might reasonably have expected the injured person to use, consume, or be affected by the goods in ohio and
  2. the defendant regularly does or solicits business, engages in any persistent course of conduct or derives substantial revenue from goods used or consumed or services rendered in ohio
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7
Q

Living in a marital relationship in ohio

A

non-withstanding any subsequent departure from ohio if

  1. martial relation in ohio at some time
  2. claim relates to marital obligations and
  3. one spouse still ives in ohio
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8
Q

causing (intentional) tortious injury to any person in ohio by an act outside ohio

A

if:

  1. the D committed the act with the purpose of injuring persons AND
  2. the person served might reasonably have expected that some person would be injured thereby in ohio
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9
Q

causing tortious injury to any person is a criminal act

A

if: 1)element of the crime took place in ohio and 2)the person to be served committed the criminal act or is guilty of complicity in the acts commission

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10
Q

federal due process requirements

A

does the defendant have certain minimum contacts with the forum states that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?

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11
Q

contacts

A

evaluate the defendants contacts with the forum state on the basis of:

  1. purposeful availment
  2. relationship between the contacts and the cause of action
  3. forseeability that the D would get sued in this forum
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12
Q

fairness and federal dues process

A
  1. burden of the D of litigating in this forum
  2. interest of the forum
  3. plaintiff’s interest in litigating in this firum
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13
Q

general jurisdiction federal dues process

A

when the defendant as substantial ongoing contacts with the forum state that state may have general jurisdiction over that defendant even for actions unrelated to the D’s contacts with that state
essentially have to be “at home” for this to apply

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14
Q

specific jurisdiction federal due process

A

when the action arises from the D’s contacts with the forum state, that state may have specific jurisdiction over the defendant even though the defendant has few contacts with that state

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15
Q

in rem jurisdiction

A

an action in rem affects only property in the state that has been seized by the court prior to the action
constitutional test: is the same as in personam jurisdiction

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16
Q

Ohio: court of common pleas

A

Always has

  1. General division
  2. probate division

may have

  1. domestic relations
  2. juvenille court

the ct of common pleas can transfer a care to the appropriate municipal court if the claim does not exceed 1000 and the presiding judge of the municipal court concurs with the transfer

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17
Q

general division of the court of common pleas

A

original jurisdiction over all claims that exceed $500 and are not within the exclusive jurisdiction of the ohio ct of claims (claims against the state)

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18
Q

probate division of the court of common pleas

A
  1. exclusive jurisdiction over probate and testamentary matters, actions concerning withdrawl or continuation of life sustaining medical treatment, appointment of trustees for insolvency and other such matters
  2. concurrent jurisdiction with the general division to hear actions concerning inter vivos trust and to issue writs of habeas corpus
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19
Q

domestic relations division

A

exclusive jurisdiction over divorce, alimony, marriage annulment, bastardy, child custody and child support

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20
Q

juvenile court

A

exclusive jurisdiction over certain matters relating to children including:

  1. allegations of delinquency, abuse or neglect
  2. determination of paternity, child custody, or child support if raised seperately from a divorce action
  3. habeas petitions and hospitalizations of children for mental illnesses and
  4. applications for consent to marry or an abortion without notification of the parents
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21
Q

municipal and county courts

A

original subject matter jurisdiction (not exclusive) over actions which :

  1. Territory: either the claim arose within the courts territorial jurisdiction OR the defendant resides or was served process within that territory AND
  2. amount in controversy does not exceed $15,000

municipal courts have limited territorial jurisdiction, it may be the city limits or a whole county

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22
Q

municipal court relation to the court of common pleas

A

exclusive jurisdiction:
the court of common please has jurisdiction over claims that exceed 15K and are not within the court of claims jurisdiction
municipal courts have exclusive jurisdiction with claims over $500

Concurrent jurisdiction: over claims that exceed 500 but are less than 15000

if a counterclaim exceeding 15K is filed in municipal court the action shall be transferred to the court of common please

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23
Q

small claims division of municipal and county courts

A

claims that do not exceed 3K exclusive of interest and costs

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24
Q

ohio court of claims

A
  1. exclusive jurisdiction over claims doe damages against the state
  2. residual jurisdiction to hear counterclaims, cross claims, third party claims, and equitable claims that accompany damage claims against the state
  3. removal from the court of common pleas when a party asserts a damages claim against the state
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25
Q

subject matter jurisdiction of federal district courts

A

court of limited jurisdiction
1. the primary grants of federal subject matter jurisdiction are: diversity of citizenship, federal question, and US as a party

  1. important secondary grants of jurisdiction are supplemental and removal jurisdiction

There is NO federal subject matter jurisdiction to determine marital status, child custody, or to probate a decedents estate

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26
Q

diversity of citizenship jurisdiction

A
  1. basic rule: federal jurisdiction exists if two requirements are satisfied:
    a) the complete diversity rule: no plaintiff is a citizen of the same state as ANY defendant
    b) amount in controversy exceeds 75K
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27
Q

determining citizenship

A
  1. individuals: citizenship = domicile
  2. corporation: citizenship = state of incorporation PLUS state of principal place of business
  3. partnerships, unincorporated associations, and other entities citizens of each state of which one of their members/partners is a citizen
  4. decedent, minors and incompetents: citizenship of the decedent, minor or incompetent not the citizenship of their representative that counts
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28
Q

domicile

A

is established by the concurrence of:

  1. physical presence
  2. intent (to make home)

People only have one domicile (can only be a citizen of 1 state at a time)

changes of domicile: determine diversity at the time of filing

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29
Q

test for principal place of business

A

headquarters or nerve center where officers direct, control, and coordinate the corporation’s activities

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30
Q

amount in controversy federal subject matter

A
  1. over 75K, has to be a good faith allegation that the claim exceeds 75K exclusive of interests and costs. the amount requirement is satisfied unless it is clear to a legal certainty that the amount recoverable does not exceed 75K
  2. monetary value of on monetary claim is determined by evaluating the value of requested relief to the plaintiff or the cost of relief to the defendant
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31
Q

aggregating claims to reach 75K

A

can aggregate claims against individual defendants, but cannot aggregate claims of different defendants

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32
Q

Federal question jurisdiction

A
  1. the action arises under the constitution, laws, or treatises of the US
  2. well pleaded complaint rule: plaintiff’s claim properly pleaded, must be based on federal law. always ask: if the P enforcing a federal right?
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33
Q

multiple claims and subject matter jurisdiction

A

federal court must have jurisdiction over every claim asserted, if one claim is and one is not, try supplemental jurisdiction

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34
Q

supplemental jurisdiction

A

if a federal court has subject matter jurisdiction over one claim then it may exercise supplemental jurisdiction over any other claim that are so related that they form part of the same case or controversy

Test: do the claims arise from a common nucleus of operative fact (the same transaction of occurrence)

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35
Q

exception to supplemental jurisdiction

A

supplemental jurisdiction will not exist even if the requirements are met if

  1. claim A is in federal court solely on diversity jurisdiction and
  2. claim B is a claim
    a) by the plaintiff
    b) against parties other than the diverse defendant (joined parties) AND
    c) assertion of claim b would be inconsistent with the complete diversity and amount in controversy requirements of the diversity statute
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36
Q

supplemental jurisdiction over claims asserted by the plaintiff against joined parties

A

requires:

  1. the supplemental claim must be related to a claim within the federal courts subject matter jurisdiction (common nucleus of operative fact and
  2. that other claim must be a federal question claim
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37
Q

supplemental jurisdiction over all other claims (claims asserted by anyone other than the plaintiff)

A

requires only that:
1. the new claim is related to the claim within the federal court;s SMJ

often applies when the D and other non-plaintiff’s assert cross claims and third-party claims

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38
Q

courts discretion in SMJ

A

the court has discretion to not hear claims within its supplemental jurisdiction if

1) the federal question is dismissed early in the proceedings
2. the state law claim is complex or
3. the state law issues would predominate substantially in the case

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39
Q

removal

A

allows the defendant to have case filed in the state court “removed” to the federal court encompassing the state court in which originally filed

Generally test: removable if case could have been maintained in federal court
exceptions in diversity cases: no removal if any D is a citizen of the forum state

only defendantS can remove

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40
Q

removal time limit

A

Time limit: Diversity cases cannot be removed more than 1 year after the case was filed in state court

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41
Q

procedure for removal

A

D files notice of removal in federal court, stating grounds of removal and attaching the documents served on the D in the state action
Timing: must remove within 30 days of case becoming removable
no removal for diversity more than one year after commencement

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42
Q

removal: motion to remand

A

a plaintiff can file a motion to remand to the state court if the P believes that removal was improper. can be based on:

  1. lack of SMJ: can file the motion anytime
  2. for other reasons: ex. defect in removal proceedings, must be filed within 30 days
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43
Q

venur for removal

A

district that geographically encompasses the state court

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44
Q

the erie doctrine

A

when the federal court exercises diversity or SMJ, they must apply the substantive law of the state in which they sit, federal courts may nonetheless apply federal law on procedural matters.

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45
Q

analysis for erie doctrine

A

what issues are substantive and thus governed by state law and which issues are procedural?

  1. Fed statute conflicts with state law: apply the fed statute if it is within congress’s enumerated powers
  2. federal rule of civil procedure conflicts with state law: apple the FRCP if if meets the requirements for the enabling act which requires that the rule 1)regulate procedure and 2) do not abridge substantive rights
  3. federal judge made law conflict with state law: determine whether the law is substantive or procedural by applying one of 3 test
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46
Q

tests for determining whether a law is substantive or procedural

A
  1. outcome determinative: would the application of the federal law instead of the state law affect the outcome? if yes, probably substantive
  2. avoid forum shopping: would application of the fed law rather than the state law cause parties to choose the fed court? if yes, probably substantive
  3. balance of interest: does either the federal or state law have a strong interest in having its law applied?
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47
Q

venue

A

which federal district or which ohio court of common pleas?
Rules:
Diversity
1. where any defendant resides, if all reside in the same state
2. where substantial part of the claim arose
3. if none of the above, then where any D is subject to personal jursidiction
All other cases
1. where any D resides if all reside in the same state
2. where a substantial part of the claim arose
3. if none of the above, where any D is found

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48
Q

determining the D’s residence

A
  1. individuals: domicile
  2. corporation: resides in all districts which it is subject to personal jurisdiction when the case is filed
    if the state has jurisdiction over corporation but corporation has insufficient contacts with any single district within the state, corporation resides in the district in the state that has the most substantial contacts
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49
Q

venur for ohio courts

A

in counties where:

  1. the D resides
  2. where the D has its principal place of business
  3. the D conducted activity that gave rise to the claims
  4. all or part of the claim for relief arose
  5. if the subject of the action is real property or tangible personal property then where the property is situated
  6. if the suit if against a public officer in his official capacity, then where the public officer maintains his principal office
  7. if the action is one asserting tort claims involving asbestos, silicosis, or mixed dust diseases, then only where 1) all of the exposed plaintiffs reside 2)where all of the exposed plaintiffs were exposed or 3)where the defendant has its principal place of business
  8. where the plaintiff resides if either 1)the action requires out of state service pursuant to rule 4.3 or 2) the action is for divorce, annulment or legal separation and the P has been a resident of that county for at least 90 days
  9. if no venue is proper under the provisions above then where the P resides, has his principal place of business or regularly conducts business activity
  10. if no venue is proper under the provisions above then 1)where the D has property or debts subject to garnishment or 2) where the D has appointed an agent to receive service
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50
Q

venue for multiple parties and claims

A

if venue is proper to one claim and party, then it is proper to all properly joined parties

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51
Q

federal court-transfer of venue

A

from one federal district court to one where the case could have been brought originally
1. when original venue is proper: court may transfer to another federal court based on 1) convenience to the parties 2) convenience of the witnesses and 3) interest of justice

  1. when the original venue is not proper: can transfer in the interest of justice or may dismiss
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52
Q

ohio courts transfer of venue

A
  1. when original venue is proper: when an fair and impartial trial cannot be had in a county, the court may transfer to an adjoining county
  2. when venue is improper: court shall transfer to a proper venue upon timely motion, costs may be assessed
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53
Q

forum non conveniens

A

common law: court may in its discretion decline jurisdition in deference to another forum based on such factors as relative ease of access to proof, availability of compulsory process, cost of obtaining attendance of witnesses, administrative difficulties etc

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54
Q

ohio rule 3(D)

A

grounds: the court finds
1. county is improper forum
2. there is no proper forum in ohio
3. there is a proper venue somewhere else

procedure: court shall stay the action upon the condition that defendant consent to jurisdiction, waive venue, and waive statute of limitation defenses

upon receiving notice that the P has recommenced the action in the out of state forum within 60 days the court shall dismiss the action

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55
Q

service of process

A

delivery of a summons and complaint. the court must have jurisdiction over the party served
two part test:
1. statutory rule and requirements
2. due process requirements (notice must be reasonably calculated under the circumstances to apprize interested parties of the pendency of the action

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56
Q

individual notice by mail

A

is probably the minimum allowed if the plaintiff knows or has reasonable access to the names and addresses of the Defendants

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57
Q

what to send with service

A
  1. the summons and complaint
  2. a request for waiver of service
  3. a waiver of service form
  4. pre-paid return envelope
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58
Q

incentives for D to waive servie

A
  1. if D waives service he has 60 days from filing complaints mailing to answer
  2. if D without reason does not waive service, D must pay costs plaintiff incurs making actual service
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59
Q

actual service

A

if D does not respond in 30 days the P proceeds with actual service, if the D is actually served before waiver is received, D will pay the cost

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60
Q

service of individuals in the US

A
  1. personal delivery: actually hand to the D or put on his body or left at usual residence with a person of suitable age and discretion who resides there.
  2. cannot serve a D who is in the state to be a witness for another case
  3. pursuant to law of the state where the district court is located
  4. pursuant to the law of the state where service takes place
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61
Q

service of corporations and associations in the US

A
  1. pursuant to the law of the state where the district court is located
  2. pursuant to the law of the state where service takes place
  3. by delivery to an officer or agent authorized to receive service
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62
Q

service of defendant in another country

A

pursuant to applicable international agreement, if none then by other suitable means

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63
Q

territorial limits of federal service

A

service outside ohio under these rules gives the federal court jurisdiction over the defendant only if the ohio long arm statute provides such jurisdiction for ohio courts UNLESS

  1. the bulge rule applies: defendant joint pursuant to third party or compulsory joinder rules is served within 100 miles of the courthouse
  2. federal statute authorizes nationwide service (statutory interpleader)
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64
Q

process servers

A

process may be served by any non-party over age 18

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65
Q

service of individuals in ohio courts

A
  1. person to be served: service of process upon the following types of D may be effected by delivering the process to the person designated
    a) the individual is competent and over 16
    b) minor: upon service of a person under 16, serve the persons guardian or the parent/caregiver residing with the child
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66
Q

service of corporations or LLCs in ohio

A

serve:

  1. the agent authorized to receive service
  2. the corporation itself by certified mail or
  3. an officer or a managing or general agent

an ee in the mail room can sign for service

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67
Q

service of a partnership in ohio

A

serve:

the entity via certified mail at any of its usual places of business or a partner or manager

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68
Q

method of service- certified mail or commercial carrier service with return receipt

A
  1. where sent: any place where service will comport with due process reasonably calculates to apprize
  2. to whom delivered: as long as addressed properly, service is effected upon certified delivery, even if the certified mail is delivered to and signed by someone other than the addressee
  3. service refused or unclaimed: if the certified mail is returned refused or unclaimed, the plaintiff must request ordinary mail service. such service then shall be deemed effective upon mailing, except previously unclaimed service that is returned for failure to deliver
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69
Q

personal service inside ohio

A
  1. written request required
  2. process server: process is generally served by the 1) sheriff of the county where the person to be served is found 2)the bailiff of the municipal court in which the action if filed 3) a non party over the age of 18 designated by the court
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70
Q

personal service outside of ohio

A

permitted only upon order of the court, court will designate a process server

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71
Q

residence service

A

upon written request service shall be effective by leaving a copy of the process and other documents at the usual residence of the person to be served with some person of suitable age and discretion residing therein

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72
Q

service by publication

A

allowed when the defendants residence is unknown and the action is one of the following

  1. regarding the disposition of real property
  2. administration or wills and trusts
  3. action against the corporation that failed to elect officers or
  4. actions against ohio resident who has left his county of residence or is avoiding service

Procedure:

  1. affidavit setting forth the grounds for service by publication: residence is unknown and not ascertainable with due diligence, efforts made to ascertain residence
  2. publication: publish notice at least once a week for 6 weeks in a newspaper of general circulation in the county where the complaint is filed. notice must list relevant names and addresses, summarize claim and demand for relief and state when the answer is due
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73
Q

time limits for service

A

Federal: filing of complaints tolls the statute of limitations, but if service is not perfected in 120 days, the court will dismiss unless the P shows good cause

Ohio: filing of complaint tolls the statute of limitations provided that process is served within 1 year of filing

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74
Q

service of motions, discovery, subsequent proceedings, and other documents

A

on attorney: serve on party’s attorney unless the court orders otherwise
1. serve by either: leaving the documents with the attorney or leaving it at the attorney’s office with a person in charge or mail it to the attorney (service is complete upon mailing)

  1. electronic transmission: ohio rules expressly authorize service by facsimile transmission. the federal rules authorize sending documents this way only if the person consented in writing
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75
Q

pleadings

A

documents that set forth the parties claims and defenses

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76
Q

complaint

A 
the principal pleading by the P
requirements:
1. statement of SMJ (federal court only)
2. short and plain statement of the claim showing the pleader is entitled to relief
3. demand for relief

in Ohio if demand is for more than 25K the pleading shall state only that and not specify the amount of the claim

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77
Q

short and plain statement of the claim showing the pleader is entitled to releif

A

notice pleading:
1. courts have interpreted this to mean that a pleader only convey enough information to allow a meaningful response
2. not required to plead the legal theory of recovery
recent SCOTUS cases:
1. complaint must contain allegations of fact that render the asserted claim plausible on its face
2. a claim has factual plausability when the P pleads factual content that allows the court to draw reasonable inference that the D is liable for the misconduct alleged

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78
Q

special matters to be pleaded with particularity

A
  1. fraud: have to have the statement and who uttered it and when
  2. special damages: out of pocket costs
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79
Q

proper parties: capacity

A

have to have the legal capacity to sue or be sued

  1. individuals who are 18 years or older
  2. infants and incompetents: may sue or defend by a guardian or similar fiduciary
  3. if there is no duly appointed guardian then they sue by next friend and defend by guardian ad litem
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80
Q

real party in interest

A

every action must be prosecuted in the name of the real party in interest except executors and administrators of estates, guardians or trustees

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81
Q

substitution of party

A

for death incompetence, transfer of interest, or change of public officer

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82
Q

fictitious parties

A

in ohio courts only
when the P does not know the name of the D, plaintiff may file the action using a fictitious name for the D
1. must have a fictitious name and a description
2. upon discovering the identity of the defendant, pleader must amend the pleading to substitute the real name and serve process on the defendant

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83
Q

defendant’s response: timing

A

pre answer motion or answer

  1. federal district court: within 21 days after service of process but if D waives service D can respond 60 days after the P mailed the waiver form to D
  2. ohio courts: within 28 days of service
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84
Q

rule 12 pre-answer motions

A
  1. matters of form: 12(e) motion for a more definite statement when pleading is so vague that a D cant frame a response or 12(f) pares out immaterial allegations and cheap shots at D
  2. rule 12(b) defenses
  3. pre answer motion on the merits: 12(b)(6)failure to state a claim on which relief can be granted and 12 (c) judgement of the pleadings and summary judgment
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85
Q

12(b) defenses

A

1, lack of SMJ

  1. Lack of PJ
  2. improper venue
  3. insufficiency of process
  4. insufficiency of service of process
  5. failure to state a claim upon which relief can be granted
  6. failure to join an indispensible party
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86
Q

consolidation of defenses

A

pre-answer motions asserting 12b defenses must be consolidated in a single pre answer motion

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87
Q

waiver of threshold defenses

A

waived if not raised in the first response

  1. PJ
  2. improper venue
  3. insufficiency of process
  4. insufficiency of service of process
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88
Q

the answer: timing

A

Federal:

  1. 21 days after service of process id D makes no motion
  2. 60 days after P mails waiver form, if D waives service
  3. 14 dys after a pre-answer motion

Ohio:

  1. 28 days after service of process
  2. 14 days after a pre-answer motion
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89
Q

contents of the answer

A
  1. 12(b)(6) defenses if not already asserted or waived
  2. responses to allegations of complaint
    a) admit
    b) deny
    c) state that you lack sufficient information to admit or deny (has the effect of denial)
    failure to deny constitutes an admission
  3. affirmative defenses: listed in rule 8c include: accord and satisfaction, arbitration, assumption of the risk, contributory negligence, duress, estoppel etc
  4. affirmative defenses must be pleaded by the defendant, if they do not plead them, they cannot be raised later
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90
Q

amending pleadings: general rules

A
  1. amendments of right: Federal within 21 days after serving the pleading if no response if required or within 21 days after service of a response to the pleading
    Ohio: within 28 days after serving the pleading if no response is required or before a response is served if a response is required
  2. with the leave of court: freely granted when justice requires
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91
Q

amending pleadings: relation back

A

amendments relate back if they arise from the same conduct, transaction, or occurrence set forth in the original pleadings

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92
Q

relation back of pleading: changing of the parties

A

relates back only if:

  1. it arises from the same conduct, transaction or occurrence set forth in the original pleading and
  2. within the time alloted for service of process (120 days or 1 year) the new party:
    a) received such notice of the action that he will not be prejudiced in maintaining his defenses on the merits and
    b) knew or should have known that but for a mistake, the action would have been brought against him
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93
Q

relation back of fictitious parties

A

when the P amends the pleading upon discovery of the D’s real name, the amendment relates back to the time the ficticious party complaint was filed provided the amendment is made and the defendant is served within one year after the original filing

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94
Q

Rule 11

A

requires attorney to sign all pleadings, written motions, and papers, and the signature certifies
1. a reasonable inquiry conducted
2. no improper purpose
3. legal contingents are warranted by law
4. facts have or will have evidentiary support
this is a continuing duty: certification is renewed every time the position is presented to the court

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95
Q

rule 11 safe harbor provision

A

motion under rule 11 is served on bot filed with the court. party allegedly violating the rule 11 has 21 days to withdraw the document before the motion is filed

sanctions are discretionary and may be levied against the attorney, firm or party

96
Q

ohio rule 11

A

the signature on all papers certifies:

  1. the party or attorney has read the document
  2. that to the best of the attorney’s/party’s knowledge information and belief there is good ground to support the document and
  3. that the document is not interposed for delay

an ohio court may award fees and expenses caused by a willful violation of rule 11

97
Q

joinder of claims and parties

A
  1. it is more efficient to determine all related claims and join all interested parties in a single suit, so there are liberal joinder rules
  2. separate trials may be ordered
  3. in federal court: consider 1) do the applicable rules permit joinder? and 2) does the court have SMJ over the claims joined?
98
Q

permissive joinder of parties

A

rule 20 requirements:

  1. the claims arise from the same transaction or occurrence and
  2. claims share come common question of law or fact
99
Q

supplemental federal jurisdiction and joinder

A

court must have either independent SMJ over each claim or independent SMJ over one claim and supplemental over the others

100
Q

rule 19: joinder of persons needed for just adjudication (compulsory joinder)

A

even if plaintiffs choose not to join certain parties in an action, courts should require their joinder in certain instances becuase of the absentees relationship with the action

101
Q

rule 19: necessary parties

A

provided joinder is feasible, the court will order the joinder if:

  1. complete relief cannot be afforded without absentee
  2. the absentee’s interest will be harmed if he isnt joined (practical harm) OR
  3. the absentee claims an interest which subjects a party (usually the D) to multiple obligations
102
Q

Joinder is not feasible

A
  1. no PJ over absentee or absentee would destroy diversity
  2. bulge rule: absentee joined as necessary party may be served within 100 miles of the courthouse even if outside the forum state
103
Q

indispensable parties

A

if the absentee is deemed necessary but joinder is not feasible, then the court must determine whether in equity or good conscience 1)the action should proceed among the existing parties or 2) the action should be dismissed

Factors: alternative forum available where everyone can be joined, actual likelihood of prejudice, can the court shape relief to avoid prejudice

104
Q

compulsory joinder ohio

A

absent a showing of good cause, the court on a timely motion shall order that a person be made a party is she is subject to service and has an interest arising from the following situations:

  1. estate’s surviving tort claim and family’s wrongful death claim
  2. one spouse’s tory claim and the other spouse’s claim for loss of consortium or for expenses or property damage arising from the same incident
  3. minor plaintiff’s tort claim and parent’s claim for loss of consortium or for expenses or property damage caused by the same act
  4. plaintiff ee tort claim and employer;s claim for property damage caused by the same act
105
Q

joinder of claims rule 18

A

no requirements, can join claims at any time and they do not have to be related
in federal court need SMJ

106
Q

counterclaims

A

rule 13: offensive claims against an opposing party filed with a responsive pleading

107
Q

compulsory counterclaims

A
  1. counterclaim that arises from the same transaction or occurrence as P’s claim must be filed in the pending case
  2. exceptions: 1)claims pending in other courts and 2) claim required parties beyond court’s jurisdiction
108
Q

permissive counterclaims

A

do not arise form the same transaction or occurrence as the P’s claim and do not have to be asserted in pending case

109
Q

supplemental jurisdiction for counterclaims

A

always present in compulsory counterclaims and never present in permissive counterclaims

110
Q

counterclaims and relation back

A

Federal: a compulsory counterclaim related back to the time the plaintiff filed the original complaint, permissive do not relate back

111
Q

ohio law: counter claims

A
  1. compulsory or permissive is not time barred if the statute of limitations had not expired when the P commenced the action
  2. compulsory counterclaims is not time barred even if the s/l had expired when the plaintiff commenced the action but in that instance the counterclaim may only be used for the recoupment or set of, not an affirmative recovery
112
Q

cross claims

A
  1. offensive claims against co-parties
  2. requirements: claims arise from the same transaction or occurrence as the original action or a counterclaim therein
  3. cross claims are never compulsory
  4. supplemental jurisdiction will always exist for a cross claim that meets the rule 13 requirements
113
Q

impleader: rule 14

A
  1. third party defendant brought in usually by the D for indemnity or contribution
  2. rule 14 requirements: derivative liability, a party may implead a third party if a claim has been asserted against her and she claims that the third party is liable to her for all or part of her liability to the plaintiff
114
Q

impleader timing

A

implead the right within 14 days of serving one’s answer after that court permission is required (both fed and ohio)

115
Q

claims between the third party D and other parties

A
  1. after a third party D is joined, he can assert a claim against the P if it arises from the same transaction or occurrence as the underlying case
  2. a plaintiff can assert a claim against a TPD also
116
Q

federal supplemental jurisdiction and impleader

A
  1. if the impleader claim is properly in federal court and a 3rd party claim is properly asserted under rule 14, the court will have supplemental jurisdiction over the 3rd party claim
    2, if the TPD asserts a claim against the P, the court has supp jurid too
  2. if the claim if by the P against the TPD, SMJ only if either the court has independent SMJ over the claim or there is supplemental jurisdiction
117
Q

intervention rule 24

A

absentee wants to join a pending suit
intervention of right exists when a statute confers the right or the following are met:
1. applicant claims an interest in the property or transaction that is the subject of the action
2. the action may as a practical matter impair the applicants ability to protect that interest and
3. applicant’s interest is not adequately represented by existing parties
(as a P, no supplemental jurisdiction, as a D yes)
Permissive intervention: applicant must show that her claim and the pending case have at least one common question. this is discretionary with the court and have to watch for delay and prejudice (almost never has supp juris)

118
Q

interpleader

A

one holding money or other property wants to force all potential claimants into a single lawsuit, the idea is to avoid multiple litigation and the risk of inconsistent results

  1. the stakeholder: pays the money to the court to hold
  2. the claimants may have a claim to the money
119
Q

federal court interpleader

A

rule 22 interpleader and statutory interpleader have different rules

  1. Diversity of citizenship (rule interpleader requires complete diversity and statutory requires minimal diversity, or only one claimant to be diverse from stakeholder)
  2. amount in controversy: (Rule:must exceed 75K, Statutory must exceed $500)
  3. service of process and PJ: (Rule: normal territorial limits, statutory, nationwide service)
120
Q

class actions

A
  1. a joinder device in which representative parties sue or are sued on behalf of others similarly situated who may not be before the court
  2. before a class action may be maintained a court must make 7 affirmative findings. it must determine that 2 implicit requirements are satisfied, that 4 explicit requirements are satisfied and that the calss action fits one of the 3 permissible types of class action
121
Q

implicit initial requirements for a class action

A
  1. Class definition: the class definition must be unambiguous so that members may be identified with reasonable effort
    - you do not have to know every class member, but if someone walks into the courthouse, need to be able to determine whether or not they are in the class without a full blown inquiry into it
  2. named representatives must be members of the class
122
Q

explicit initial requirements for class action

A
  1. numerosity: too numerous for practical joinder
  2. commonality: some questions of law or fact are shared by all class members
  3. typicality: names representatives claims/ defenses are typical to the class members AND
  4. representation: representatives will fairly and adequately represent the class
123
Q

type of class action

A
  1. 23(b)(1) prejudice class action
  2. 23(b)(2) injunction or declaratory judgment class action
  3. 23 (b)(3) damages class action
124
Q

23(b)(1) prejudice class action

A

class treatment necessary to prevent prejudice where individual action creates a risk of

  1. inconsistent standard of conduct created by inconsistent adjudications. and
  2. impairing ability of absentee to protect their interest
    ex. challenging the constitutionality of voting rights or validity of a lease
125
Q

23(b)(2) injunction or declaratory judgment class action

A 
party opposing the class acted in a way generally applicable to the class as a whole making it appropriate to render injunctive or declaratory relief as to the class as a whole
ex. residence surrounding a waste site assert that the sire is a nuisance and seek injunction to eliminate the site
126
Q

23(b)(3) damages class action

A
  1. seek monetary damages
  2. common questions predominate
  3. class action is the superior method of handling the dispute
127
Q

procedure for class action

A
  1. certification
  2. notice
  3. class counsel
  4. settlement and dismissal
128
Q

certification of class action

A

: court must decide as early as possible whether to certify as a class action, the rule requires that an order certifying a class to define the class and the class claims issues and defenses and to appoint class counsel

129
Q

notice to class members

A 
under 23b1 and 23b2: the court may direct appropriate notice to the class, ohio rule is silent as to this issue
BUt under rule 23b3,the court must direct to class members the best notice practicable including individual notice to members who can be IDed through reasonable effort
(the notice must advice the class members that they may opt out of the class and class action)
130
Q

class counsel

A 
once certified, an attorney must be appointed to fairly and adequately represent the class
the court will consider: the work done by the atty, the atty's experience with class actions and knowledge of the applicable law, and the resources that the atty will devote to the case
131
Q

settlement and dismissal of a class action

A
  1. approval is required approval of the court is required and notice of the proposed settlement must be given to the class as the court directs
  2. discretion to opt out: the court may refuse to approve a settlement unless it affords class members a new opportunity to pot out of the class and the settlement
132
Q

federal SMJ and class action: diversity jurisdiction

A
  1. diversity of the named parties control
  2. amount in controversy: b3: if one of class members satisfies the amount then court has supplemental jurisdiction over all other claims
    b1 and b2: consider the total amount at stake
133
Q

the federal class action fairness act of 2005

A 
1. federal SMJ exists over a class action if:
any class member is a citizen of a state different from any defendant
the aggregate amount in controversy exceeds 5 million and 
the proposed class has at least 100 members
  1. removal jurisdiction:
  2. exclusions from CAFA federal SMJ
  3. exclusion of local class actions
134
Q

removal jurisdiction and CAFA

A

D may remove to federal court except the following limitations on removal do not apply:

  1. any D may remove without consent of al defendants
  2. a D’s citizenship in the state in which the action was filed does not prevent removal
  3. the one year limitation of removal of diversity actions does not apply
135
Q

exclusions from CAFA fed SMJ

A

federal SMJ does not apply if:

  1. the primary D’s are states or state officials
  2. the class action solely involves a claim that arises under the federal securities statutes or that relates to the internal affairs or governance of a corporation or other business entity and arises under state law
136
Q

exclusions of local class actions

A
  1. mandatory decline of federal jurisdiction: a federal court must decline jurisdiction under the CAFA if:
    1. more than 2/3 of the P are citizens of the state from which the class action was removed
    2. a significant defendant is a citizen of that state and
    3. principal inquires were incurred in that state
  2. discretionary decline or federal jurisdiction:
  3. more than 1/3 but less than 2/3 of the plaintiff class are citizens of the state from which the class action was removed and
  4. the primary defendants are citizens of that state
  5. the court considers a variety of factors such as whether the claims involve a national interest, whether claims are governed by the state law and whether the state has a different nexus with the class the harm or the D
137
Q

Interim Injunctive relief

A

on motion, court may issue a preliminary injunction prior to trial to prevent harm from occurring before trial is held

138
Q

standard of issuance for interim injunctive relief

A

four factors

  1. substantial likelihood of prevailing of the Merits
  2. irreparable harm (a substantial threat of harm before trial and the harm will not likely be remedied by money)
  3. balance of hardships: the threatened injury to the P must outweigh the harm that the preliminary injunction may do to the D
  4. public policy: the preliminary injunction must not be contrary to an important public interest
139
Q

procedural requirements for interim injunctive relief

A
  1. motion
  2. notice and opportunity to be heard
  3. security (bond): party seeking the injunction must post a bond sufficient to reimburse the enjoined party for damages caused by the injunction if later found to have been improvidently granted
  4. Duration: until judgment (can continue or dissolve)
140
Q

Temporary Restraining order (TRO)

A

upon motion a court may issue a TRO, an emergency preliminary injunction without notice or at least without a full hearing

141
Q

standard of issuance for a TRO

A
  1. same four standards as a preliminary injunction and
  2. plaintiffs reasons for seeking issuance of the TRO without the full notice and opportunity to be heard afforded with preliminary injunctions
142
Q

procedural requirements for TRO

A

TRO may be issued without notice or with reduced notice only if:

  1. it clearly appears from specific facts shown by affidavit that immediate and irreparable injury will result to the applicant before the adverse party can be heard in opposition and
  2. the applicant certifies in writing what efforts were made to give notice and why notice should not be required

security
Duration: 14 days: once a TRO is issues the court shall set the motion for a preliminary injunction hearing at the earliest possible time and the TRO will be dissolved if the preliminary injunction is not granted

143
Q

discovery meeting and plan

A

Federal only, requires the parties to meet as soon as practicable to develop a proposed discovery plan

144
Q

required disclosures: initial disclosures

A

Federal only
Within 14 days of a discovery conference (or 30 days after being joined) parties must provide to other parties:
1. identity of individuals (names, addresses, and phone numbers) likely to have discoverable information that the disclosing party may use to support its claims or defenses
2. documents, electronically sotred information or things; in the disclosing party’s posssession that the disclosing party may use to support its claims or defenses
3. a computation of damages claimed and
4. insurance agreements

145
Q

required disclosures: expert witnesses

A

at least 90 days before trial or as directed by court, parties must provide:

  1. identity of experts who may be used at trial and
  2. written reports for each such expert containing the expert’s opinions, data considered, exhibits, qualifications, compensations, and previous expert testimony
146
Q

Required disclosures: pretrial disclosures

A

no later than 30 days before trial, parties must give detailed information about trial evidence including:

  1. document and exhibit lists
  2. list of witnesses designating those who will testify live or by deposition and those who will be called and those who will be called only if needed
147
Q

discovery requests

A

in ohio, all discovery is by request, federally, there are required disclosures

148
Q

substantive scope of discovery: ohio

A

relevant to the subject matter involved in the pending action
and
discover anything that is reasonably calculated to lead to admissible evidence

149
Q

substantive scope of discovery: federal

A

relevant to the claim or defense of any party (a little more narrow than ohio)
and
discover anything that is reasonably calculated to lead to admissible evidence

150
Q

discovery of privileged matter

A

not discoverable, but limited to the formal evidentiary priviledges

151
Q

insurance agreements and discovery

A

Federal: existence and amount of coverage are subject to initial disclosure
ohio: the existence and content of any insurance agreement under which an insurer might be liable for all or part of the judgment is discoverable

152
Q

work product doctrine: discovery limitation

A

work product is:

  1. documents, tangible things and electronically stored information
  2. prepared in anticipation of litigation or for trial
  3. by or for a party or a party’s representative
153
Q

when is work product discoverable?

A

the discovering party shows:
1. a substantial need for the material and
2. he cannot obtain the substantial equivalent of the material by other means without undue hardship
BUT attorney’s opinions, conclusions, and legal theories are given special protection (redacted)

154
Q

expert and expert witnesses who will testify: discovery limitation

A

federally required disclosure, deposition is expressly allowed (draft reports and confidential communication with atty are protected as work product)

Ohio: interrogatories about identity and subject matter of expected testimony and thereafter any party may discover from the expert facts known and opinions held by the expert relevant to the stated subject matter

155
Q

expert and expert witnesses who will not testify: discovery limitation

A

no discovery absent exceptional need (generally means it is not available elsewhere)

156
Q

protective orders

A
  1. the court on motion may enter a protective order to limit regulate or deny discovery to protect parties and deponents from annoyance, embarrassment, oppression, or undue burden or expense
  2. motion must be accompanied by a certification that the movant has conferred with other parties and attempted to resolve discovery dispute without court action
157
Q

General limitations on protective orders

A

federal only: a court may limit if:

  1. a discovery sought is unreasonably duplicative or is attainable from another source that is less burdensome or expensive
  2. the party seeking discovery already has had ample opportunity by discovery in the action to obtain the information sought
  3. the burden or expense of the proposed discovery outweighs its likely benefit taking into account the needs of the case, the amount in controversy, the parties resources and the issues at state and discovery in relation to resolving those issues
158
Q

Electronically stored information (ESI)

A
  1. initial response and production: a party need not provide discovery of electronically stored information that is not reasonably accessible because of undue burden or expense
159
Q

disputing ESI production

A
  1. on motion to compel discovery or for a protective order, the party from whom discovery is sought has the burden of showing that the EsI is not reasonably accessible
  2. even if the ESI is not reasonably accessible, the court may order the discovery if the requesting party shows good cuase
160
Q

what is good cause for production of discovery

A

Ohio rule: the court should consider:

  1. whether the discovery is unreasonably cumulative or duplicative,
  2. whether the information can be obtained from other sources with less burden or expense and
  3. whether the party seeking discovery has had ample opportunity by other discovery in the action to obtain information
  4. whether the burden and expense of discovery likely outweighs the benefit
161
Q

discovery before the action is filed

A
  1. discovery to perpetuate evidence: the court can order a pre-action deposition, production of documents, and things or physical/mental examination based on the following procedure
    a) petition
    b) serve petition and notice of hearing on each person names in the petition 28 days prior to the hearing except as otherwise provided
    c) standard for ordering prefiling discovery: may prevent failure or delay of justice
162
Q

petition for discovery before action is filed

A
  1. where: court of common pleas in the county where the expected adverse party resides (or the fed district)
  2. content: 1) a showing that the petitioner expects to be a party to an action but cannot presently institute it 2)subject matter of the action 3)facts to be established by the proposed discovery 4) names of expected adverse parties 5)names of persons to be examined and 6) request for an order authorizing the desired discovery
163
Q

Rule 34 production prior to filing: ohio

A

upon a petition, a court may order prior to the filing of an action the production of documents and things or the inspection of premises if the court finds:

  1. discovery is necessary to identify a party
    2) petitioner is otherwise unable to bring the action and
    3) petitioner made reasonable efforts to secure voluntary production
164
Q

discovery after action is filed

A

Federal: no discovery prior to the rile 26f discovery conference except by agreement or order
Ohio: interrogatories and requests for documents: may be served along with the complaint and anytime thereafter
depositions: anytime after the action is commenced but the deposition cannot be used against a party who shows that despite diligence was unable to obtain counsel to attend the deposition

165
Q

depositions upon oral examination

A

Federal limits: no more that 10 depositions and only one deposition of a person without court approval or stipulation. a deposition is limited to 1 day of 7 hours without order of the court

166
Q

how is deposition upon oral examination commences

A
  1. party: serve written notice of deposition
  2. non-party: service of written notice AND subpoena
  3. rule 30b6 deposition of organization
  4. production of documents/things at depostion
  5. use of deposition at trial
  6. objections at deposition
167
Q

non-party deposition: federal subpoena

A

person may be required to attend any place within 100 miles of the place where the person resides, is employes, transacts business or is served

168
Q

non-party deposition: ohio subpoena

A

must be served by delivering it to the witness in ohio

169
Q

rule 30b6 deposition of organization

A

notice designates the subject of the deposition and the organization must designate a deponent

170
Q

production of documents and things at deposition

A
  1. parties: rule 34 request for production
  2. non-parties: subpoena duces tecum (bring the thing with you)
    subpoena will be quashed by written objection served within 14 days
171
Q

use of deposition at trial

A

permitted only under the following circumstances:

  1. impeach the deponent
  2. any purpose if the deponent is an adverse party
  3. any purpose if the deponent is unavailable for trial
  4. ohio: the witness is an attending physician or medical expert
172
Q

objections at depositions

A
  1. any objection that can be cured at the deposition (form of question, qualification of court reporter) must be raised at deposition or is otherwise waived
  2. any objection that could not be cured at deposition (evidentiary objections, competency of witnesses) are preserved and can be asserted at trial
  3. counsel may instruct the witness not to answer only to assert a privilege, a court ordered limitation on discovery or a motion under rule 30d to terminate deposition
173
Q

depositions upon written questions

A

must read the questions as written and take the answers that are given

174
Q

interrogatories

A

only parties to the action
1. response: requires written answers or objections, a reasonable inquiry is required but can say IDK if that is true answer.
can produce business records in lieu of an answer if record is IDd with sufficient detail and the burden of finding the information is substantially the same for P and D
-timing: federal 30 days after service, Ohio: 28 days after service
2. limited number: federal 25, ohio-40, both include subparts
3. use at trial: party may not use his own answers, answers of others can be used per rules of evidence

175
Q

production of documents, ESI and things; entry upon land: request to party

A
  1. request to a party: party may serve a request for production or entry
  2. response: must be served in 30 days, either by production or objections
    the materials must be produced either as they are kept in the ordinary course of business or organized to correspond with the categories in the request
176
Q

production of documents, ESI and things; entry upon land: request to non-party

A
  1. requires a subpoena which may be issued separately or with subpoena for testimony
  2. subpoena is quashed if the nonparty to who it is directed serves written objection within 14 days after service of the subpoena
177
Q

ESI request: form produced

A
  1. the requesting party may specify the form
  2. if the producing party objects to the requested form, or if no form was specified, then the responding party must state the form it intends to use
  3. the producing party must produce the information in either a form which is ordinarily maintained or a for that is reasonably usable
    a party need not produce ESI in more than one form
  4. absent a court order, a person need not provide discovery of ESI that the person identifies as not reasonably accessible becuase of undue hardship or cost
178
Q

physical or mental examination

A

available only for a party or person in party’s control through court order:

  1. showing required: 1. the party’s actual health is in controversy and 2) good cause for ordering the exam
  2. examination reports: person examined may obtain on request a copy of the examiner’s report but such a request waived the persons dr-patient privilege relating to reports by his doctors regarding the same condition
179
Q

requests for admissions

A

a request by one party to another to admit the truth of any discoverable matters

  1. response must admit or deny statements, can indicate a lack of information only if you have made a reasonable inquiry
  2. failure to deny is an admission
  3. response in ohio is due within 28 days of service
180
Q

asserting privilege and work product production

A
  1. information withheld: when a party withholds discoverable information on the grounds that it is privileged or subject to work product protection, the party must describe the nature of the things not produces in a manner that enables others to assess the applicability of the privilege or protection
  2. claw back provision: if information is produced in discovery that is subject to a claim of privilege or work product protection, the party making the claim may notify any party that received information of that claim
    - upon notification, a party must promptly return, sequester, or destroy the specified information until the claim is resolved
181
Q

signature requirements for discovery

A

Federal: every discovery request and response must be signed by counsel certifying that it is warranted not interposed for improper purpose and not unduly burdensome
Ohio: discovery documents may be governed by rule 11 which requires documents to be signed certifying that they are not interposed for delay

182
Q

duty to supplement

A

if a party learns that its response to required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect, it must supplement its response

183
Q

enforcement of discovery rules

A

generally parties figure it out themselves but if you have to go to the court, have to certify the effort to resolve the dispute in good faith without the court

184
Q

presenting discovery disputes to the court

A
  1. motion for a protective order
  2. motion to compel discovery: 1. receiving party answers some requests and objects to others causing the asking party to file the motion 2 the receiving party fails completely to attend deposition, respond to interrogatories or to resond to requests for production, leading asking party to file motion
185
Q

enforcement tools against a party:

A
  1. court overrules a parties objection to discovery: order compelling responses, plus cost of bringing motion (including atty fees)
  2. violation of order compelling discovery: sanctions plus costs and could be held in contempt (no contempt for refusal to submit to a medical exam)
  3. complete failure to respond to discovery: sanctions plus costs
  4. false denial of request to admit: recover cost of proving the issue denied (limited utility)
  5. failure to make required disclosure or to supplement prior response: sanctions plus cost. party fiaing to make disclosure or supplement cannot use the information at trial inless the failure was justified or harmless
186
Q

available sanctions for discovery enforcement

A

establishment order (est facts as true)

  1. strike pleadings of the disobedient party
  2. disallow evidence from the disobedient party
  3. dismiss the plaintiff’s case
  4. enter default judgement against the D
187
Q

enforcement tool against nonparty

A

contempt

188
Q

enforcement tool against attorney

A

liable for all expenses incurred by the other side if she counseled one of these bad acts

189
Q

ESI sanctions

A

absent exceptional circumstances a court may not impose sanctions on a party for failure to produce ESI lost as a result of routine, good faith operation

190
Q

voluntary dismissal of action

A

dismissal of right

  1. federal: once without prejudice before the D answers
  2. Ohio: once without prejudice anytime before trial (unless a counterclaim that cannot remain pending for independent adjudication)
  3. second dismissal: with prejudice
191
Q

involuntary dimissal

A

usually with prejudice unless based on 12 b

  1. grounds: failure to prosecute, failure to comply with rules and order, rule 12 grounds
  2. effect: with prejudice unless otherwise ordered
192
Q

default judgment

A

judgment against a defendant for failure to comply with rules and orders of the court of for a failure to defend

193
Q

entry of default v. default judgement

A

entry of default a ministerial act by the clerk of court, noted on the case. after, can motion for a default judgment

194
Q

grounds and procedure for default judgment

A
  1. failure to appear: no additional notice is required, clerk can enter sum certain, court enters if not certain
  2. appearance but failure to answer: D must receive 7 days notice of hearing on motion for default judgment, the court must enter the judgement
195
Q

procedure for default judgement in ohio court

A

clerk cannot enter judgement, have to go through court, notice if appaearance

196
Q

limitations on default judgments

A
  1. minors and incompetents: cannot be entered unless represented by a fiduciary who has appeared
  2. amount of default judgment: limited to the amount pleaded
197
Q

relief form default or default judgment

A

setting aside entry og default: fed court: showing of good cause and viable defense
2. setting aside default judgement in ohio and fed court: set aside on same limited grounds as any other judgement

198
Q

failure to state a claim dimissal

A

tests the legal sufficiency of the P’s allegations. in ruling on the motion the court looks only at the pleadings not the evidence and assumes all allegations are true

199
Q

summary judgement: timing

A

Federal: any time until 30 days after close of discovery, a fed court can also grant SJ on its own motion after giving the parties notice and a reasonable time to respond
2. Ohio: a claimant may file any time after the expiration of the time permitted go a responsive motion or pleading. a defending party may file at any time

200
Q

standard for summary judgment

A

moving party must show:

  1. there is not genuine issue or material face and
  2. movant is entitled to judgment as a matter of law
201
Q

movant established the nonexistence of factual issues by

A
  1. presenting evidence that would result in a directed verdict in her favor at trial
    a. evidence may be in the form of sworn affidavits, attached certified or sworn copies and sworn discovery responses
    b. affidavits must be based on personal knowledge and must show that the affiant is competent to testify on the matter
  2. demonstrating that the other party lacks evidence to support the essential elements
202
Q

shifting the Burden of production summary judgment

A

once the moveant demonstrated the nonexistence of factual issues and that the movant is entitled to judgment under the apparently undisputed facts, the burden shifts to the non-movant to produce evidence to demonstrate that a factual issue exists

203
Q

Bench trial

A

Fed court: court shall find facts specially and state separately its conclusions and judgment shall be entered thereon. on a party’s motion filed no later than 10 days after entry of judgement court may amend its findings and the judgment
Ohio: the courts judgment may be general for the prevailing party unless one of the parties requests otherwise (in writing and must be made before the judgement or within 7 days of the decision)

204
Q

trial by jury

A

Fed court: right to jury trial in 7th amendment for action in law but not equity
legal remedies=money
equitable remedies=injunctions
what is there is a mixed case? try with jury 1st, the legal claims

205
Q

trial by jury in ohio

A

7th amendment does not apply but ohio consitution has a similar guarantee

206
Q

demand for a jury trial

A
  1. required: parties must file a written demand for a jury trial no later than 14 days after service of the last pleadinh addressing a jurt triable issue
    the demand may be endorsed upon a pleading
  2. withdrawl of jury demand requires the consent of all parties
  3. waiver: failure to make a timely, proper demand results in loss of right
207
Q

jury size

A

size:
ohio: 8 unless demand specifies a lesser number
federal: at least 6 absent a stipulation and no more than 12

208
Q

voir dire

A

asking questions of the individual jurors

209
Q

challenges to the jury

A

challenges for cause: unlimited, for bias, unqualified etc
preemptory challenges: for any reason 3 per side
challenges based on race or gender are impermissible

210
Q

jury instructions and objections

A
  1. file written request for proposed jury instruction at the close of evidence or when the court directs
  2. the court should give the requested instructions if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusions sought by the instructions
  3. a party must object to the giving or failure to give instructions to preserve the issue for appeal
211
Q

jury verdicts: margin of the decision

A

Ohio: the jury my render a verdit upon concurrence of 3/4 or more of the jury (6/8)
Federal: verdict must be unanimous unless parties agree to the contrary

212
Q

form of the verdict: jury trial

A
  1. general verdict
  2. general verdict with interrogatories
  3. directed verdict
213
Q

general verdict with interrogatories

A

1, court submits specifc written instructions to the jury regarding underlying factual issues in the trial, the jury must answer the questions and render a general verdict
2. ohio requires interrogs only if a party so requests prior to closing arguments. Federal rules permit without request and do not address timing
3/ inconsistent verdict and answers:the court may either: enter judgement in accordance with the answers or return the jury for further consideration or order a new trial

214
Q

directed verdict (federal, judgment as a matter of law)

A

exceptional order which has the effect of taking the case away from the jury

  1. raised after an opposing party rests, close of P’s evidence and the close of all evidence
  2. standard for granting: when the evidence on an essential issue permits only one conclusion, there is not sufficient evidence to permit reasonable minds to reach different conclusions on an issue
215
Q

Judgment nonwithstanding the verdict (JNOV)

A

trial is complete and the verdict-loser requests the judgement in its favor
Standard: same as DV, judgement as a matter of law
Timing: motion must be filed within 14 days (Fed. 28 days) after entry of judgement

216
Q

motion for a new trial

A

like JNOV except the verdict loser requests a new trial
Grounds: 1. error at trial makes judgment unfair (wrong jury instructions or evidentiary ruling)
2. new evidence
3. prejudicial misconduct of party or juror
4. judgment is against the weight of the evidence (serious error of judgment by the jury)
Timing: 14 days (fed 28) after entry of a judgment

217
Q

remittitur/additur

A

motion for a new trial on the issue of damages only

  1. gives the loser of the motion a choice to either accept the reduced or increased award set by the court or a new trial will be granted
  2. additur is not available in federal court because it violates the 7th amendment
218
Q

motion to set aside a judgment- rule 60

A

court will set aside a judgment only if the movant demonstrates:
1. that he has a meritorious defense
2. that he is entitled to relief under the grounds listed below and
3. that the motion is timely
4. when relief sought from a default judgement it should be resolved in favor of the motion
Grounds and timing
1. clerical error (anytime)
2. mistake, excusable neglect surprise (reasonable time not exceeding 1 yr)
3. new evidence (that due diligence could not have found in time to move for a new trial) reasonable time not exceeding 1 year
4. fraud of an adverse party (committed on the ct or trial proceeding) reasonable time not over 1 yr
5. jugement void- reasonable time

219
Q

Appeal when to file

A

file notice within 30 days after entry of judgement (post trial motions suspend that time until rules on)

220
Q

reviewable orders: the final judgment rule

A

generally the rule is that the appeals are allowed only from final judgments which means an ultimate decision by the trial court of the merits of the entire action.

221
Q

federal appellate court: final judgement rule

A

test for determining whether an order is final judgement: after making this order, does the trial court have anything left to do? if yes, then probably not final

222
Q

Ohio appellate court: final judgement rule

A

final orders can also be appealed which include:

  1. order that affects a substantial right in an action that in effect determines the action and prevent judgment
  2. an order that vacates or sets aside judgment or grants a new trial
  3. order that grants or denies a provisional remedy and to which both of the following apply
    a) the order in effect determines the action with respect to the provisional remedy and prevent judgement and
    b) the appealing party would bot be afforded a meaningful or effective remedy by appeal following final judgement as to all proceedings
  4. an order that determines that an action may or may not be maintained as a class action
223
Q

interlocutory review

A

non-final review includes:

  1. multiple parties and claims
  2. extraordinary writs
  3. federal interlocutory order reviewable as a right
  4. class action certifications
  5. federal interlocutory appeals act
224
Q

interlocutory review and multiple parties and claims

A

generally no appeal until court adjudicates all claims against all parties unless the trial court expressly directs entry of a final judgement as to one or more of them and expressly finds that there is no just reason for delaying appeal

225
Q

interlocutory review and extraordinary writs

A

not technically an appeal but an original proceeding in the appellate court to require trial judge or other public officer to carry out its clear legal duty:

  1. writs of mandamous compel the trial court to make or vacate a certain order
  2. writs or procendendo that compel the trial court to exercise its jursidiction and
  3. writs of prohibition that confine the trial court to its proper jurisdiction
226
Q

federal interlocutory order reviewable as a right

A

injunctions, orders appointing or refusing to appoint receivers, findings of patent infringement where only an accounting is left, orders affecting possession of property etc

227
Q

interlocutory review and class action certifications

A

a federal court of appeals may in its discretion permit an appeal from an order granting or denying class certification. must be within14 days of the order

228
Q

federal interlocutory appeals act

A

allows appeal of interlocutory order only if trial judge certifies that the order involves a controlling issues of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear it

229
Q

claim preclusion

A

res judicata
1. a claim is barred if the same claim was previously adjudicated to a final judgement on the merits (almost everything except 12b dismissals)

230
Q

same claim in res judicata

A
  1. a former and current claim arise out of the same transaction or occurrence
  2. precludes identical claims and others arising from the same transaction or occurrence that could have been asserted
231
Q

same parties res judicata

A
  1. applies to parties of the prior action and persons in privity with the parties
232
Q

usually deemed in privity for res judicata

A

subsequent purchaser of land, minor who litigated with guargian,someone controlled the prior litigation

233
Q

issue preclusion

A

collateral estoppel

  1. one may not re-litigate an issue of law or fact if she previously litigates it to a final determination
    requirements:
  2. same issue (identical to previously decided)
  3. actually litigated and decided:
  4. final judgement: valid and final resolution on the issue
  5. determination was essential to the prior judgement
  6. same parties: mutuality of preclusion
234
Q

mutuality of preclusion

A

ohio follows the traditional rule: issue preclusion only if both parties to the current action were parties to the previous action

235
Q

non mutual issue preclusion

A

federal courts only

  1. persons bound: only parties to the prior action and those in privity
  2. persons who may assert: one who was not a party to the previous litigation may nonetheless assert against one who was a party to litigation subject to some qualifications
236
Q

defensive non mutual issue preclusion

A
  1. D who were not parties to a prior action may asset issue preclusion defensively against a plaintiff who did previously litigate an issue
    ex. patent infringement
237
Q

offensive non-mutual issue preclusion

A

plaintiffs who were not parties to the prior action may use issue preclusion offensively against a D who was a party to the prior action unless the court finds that doing so is unfair on such grounds as:

  1. the P could easily have joined the previous action
  2. the D lacked incentives to litigate the issue vigorously in the prior litigation
  3. the second action provides the D procedural safeguards that were not applicable in the prior litigation or
  4. there exists multiple prior actions and they reached inconsistent results regarding the issue at hand.

Bar Exam (15 decks)

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