Civpro Flashcards

Question

WHEN TO SERVE if D is to be served in US, service it to take place within how long? [ notice + service of process ]

Answer 1

no more than 90 days after filing of complaint

Answer 2

FOUR ways to serve on an INDIVIDUAL in US = 1. personal service 2. substituted service 3. service on D's agent 4. state law methods

Answer 3

Papers are given to D personally ANYWHERE

Answer 4

Valid process if served 1. @ D's usual abode 2. on someone of suitable age/discretion who resides there

Answer 5

= where he's living now (like summer home) aka need not reside there every day of year to qualify

Answer 6

no, just must RESIDE at D's usual abode (and be of suitable age/discretion)

Answer 7

Process can be delivered to D’s agent | = valid if receiving service is IN SCOPE OF AGENCY

Answer 8

[Obama voice] YES WE CAN, YES WE CAN

Answer 9

can use methods for serving process that are permitted by state law of either a. state where the federal court sits OR b. state where service is made key example of how state law might apply = allow service of process by MAIL

Answer 10

1. Officer, managing or general agent | 2. State law methods

Answer 11

Deliver a copy of the summons and of the complaint to such a person

Answer 12

Can use methods for serving process permitted by state law of either a. state where the federal court sits OR b. state where service is made.

Answer 13

use any method permitted by STATE LAW of state WHERE SERVICE is to BE MADE

Answer 14

May use method allowed by INTERNATIONAL AGRMNT (ughhhh, like Hague Convention) Or if there’s no such agreement on point, options = - As directed by the American court - If reasonably calculated to give notice 1. Method allowed by the foreign country’s law 2. Method directed by foreign official in response to a letter of request (letter rogatory) from the American court 3. Personal service in the foreign country (unless prohibited by its law) 4. Mail sent by clerk of American court, requiring signed receipt (unless prohibited by foreign country’s law) (#4 is most popular option)

Answer 15

1. Mail to D a notice and request to waive formal service, including - a copy of the complaint and - two copies of a waiver form, - with a prepaid means of returning the form 2. If D executes and mails waiver form to P within 30 days if D in US or 60 days if D is outside US = D waives formal service of process NOTE = Can be used for individuals AND entities

Answer 16

no, you psycho, this ONLY waives formal service of process

Answer 17

files it in court = @ which point it is effective | aka for timing purposes, act as though D was served w/ process on day P filed waiver form in court

Answer 18

if D fails to return the waiver form, then P serves D personally or by substituted service = D must pay cost of the service if D didn't have good cause

Answer 19

unless service is waived, process server files report with court detailing how service was made if server was a CIVILIAN, report is by AFFIDAVIT = sworn statement, under oath

Answer 20

http://nooooooooooooooo.com/

Answer 21

process may be served a. within the state in which the federal court sits or b. served outside that state if state law allows (that's why assessment of whether we have PJ is same for fed ct as it is for state ct)

Answer 22

NO, she is immune from service of process

Answer 23

still need service but don't need summons or to do so formally served by delivering or mailing docs to party’s attorney (or pro se party) examples of non-process docs = answer, other pleadings, motions, discovery

Answer 24

can serve non-process documents by email IF party AGREES

Answer 25

when they are mailed (upon dispatch) aka MAILBOX RULE IS BACK BB

Answer 26

SMJ is about the court’s power over the CASE

Answer 27

Federal courts can only hear certain kinds of cases. What about state courts? As a general rule, they can hear any kind of case. They have “general” SMJ.

Answer 28

Cases under a few federal laws must be brought in federal court (examples = patent infringement, bankruptcy, some federal securities and antitrust claims) But most cases arising under federal law can be heard by state courts

Answer 29

fed courts have LIMITED SMJ 1. diversity of citizenship (includes alienage) 2. federal question

Answer 30

NO (means no)

Answer 31

1. The case is either (a) between citizens of different U.S. states (diversity) or (b) between a citizen of a U.S. state and a citizen of a foreign country (alien- age) AND 2. The amount in controversy EXCEEDS $75,000

Answer 32

no good if ANY P is citizen of the same state as ANY D aka MATCH ACROSS THE v. DESTROYS DIVERSITY

Answer 33

alien admitted to US for permanent residence who is domicile in US state will not be considered citizen of that state (aka never invokes diversity) BUT a special rule prohibits alienage if a green card alien is domiciled in the same US state as a litigant on the other side of the case TE$T TIP = bar exam may refers to alienage as "diversity of citizenship," which is fine b/c it's a subset of diversity of citizenship jurisdiction

Answer 34

state where she's DOMICILED

Answer 35

NOPE, ya dunce. What would you even call a person without a domicile, an agentess???? aka everyone has a domicile, and you retain it until you change it

Answer 36

no, you cannot, don't be greedy; it's unseemly = a human can be a citizen of only one state at a time

Answer 37

TWO requirements = 1. PHYSICAL PRESENCE 2. INTENT to REMAIN INDEFINITELY (aka to make it your home for foreseeable future)

Answer 38

courts look to all relevant factors examples = - taking a job - buying a house - joining civic organizations - registering to vote - qualifying for in-state tuition

Answer 39

treat 'em like states bb

Answer 40

courts test for diversity when case is FILED aka we don't care what happens to citizenships after case is filed or what citizenships were before case was filed

Answer 41

corporation is citizen of both 1. every US state or country where INCORPORATED and 2. the ONE US state or country where it has its PPB NOTE = a corp can be incorporated in more than one place but it's incredibly rare (usually there's just one place of incorporation)

Answer 42

= state where managers DIRECT, COORDINATE, and CONTROL corporate activities aka NERVE CENTER (usually the site of corporate HQ) NOTE = corporation can only have ONE PPB

Answer 43

examples = partnership, LLC, etc. | citizenship of ALL its MEMBERS including citizenships of general AND limited partners

Answer 44

use citizenship of the decedent, minor, or incompetent to assess diversity (must sue or be sued through rep, but rep's citizenship is irrelevant)

Answer 45

In addition to complete diversity or alienage, P’s claim must exceed $75,000. We look only at the claim itself. Do not include litigation costs or interest on the claim. The claim itself must exceed $75,000. Whatever the plaintiff claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than $75,000.

Answer 46

= adding two or more claims to meet the amount requirement - can aggregate factually unrelated claims - no limit on the number that can be aggregated by one P against one D - in joint claims, the number of parties is irrelevant

Answer 47

P sues D for an injunction to tear down part of his house that blocks P’s view 2 tests = if either is met, most courts say it’s OK 1. P's viewpoint = does the blocked view decrease the value of P's property by more than $75,000? 2. D's viewpoint = would it cost D more than $75,000 to comply with the injunction?

Answer 48

even if requirements for a diversity or alienage case are met, federal courts decline to hear some cases 4 key examples - divorce - alimony - child custody - to probate an estate

Answer 49

claim in P’s complaint ARISES UNDER federal law (like federal constitution, legislation) citizenship and AIC DON'T matter

Answer 50

not enough that some federal issue is raised by the complaint--P’s claim itself must “arise under” federal law aka look @ the claim and ignore other material P alleged. KEY Q = IS P ENFORCING A FEDERAL RIGHT? - yes = case can go to fed ct under FQ - no = case can't go to fed ct under FQ

Answer 51

if P has sued D in state ct BUT D would prefer to litigate in fed ct, D might be able to remove case to fed ct removal = transfers case from state trial ct to fed trial ct remand = if removal was improper, fed ct can remand the case back to state ct

Answer 52

nahhhh my dude

Answer 53

D must remove no later than 30 days of service (not filing) of the first paper that shows the case is removable (usually, that means no later than 30 days of service of process)

Answer 54

ALL Ds who have been served w/ process = must be UNANIMOUS BUT they need not all join in same doc, can file separate notices of removal (as long as all of them remove in a timely fashion)

Answer 55

TRICK. Black letter rule = Ps can never, never, never remove (this is true even if D files counterclaim against P, making P a defendant on that counterclaim)

Answer 56

Starting point = D can remove case that meets requirements for diversity of citizenship or FQ UNLESS one of 2 exceptions applies -- 2 exceptions apply ONLY IF removing on basis of DIVERSITY of citizenship jurisdiction (aka even though case meets diversity reqs, can't remove if EITHER of these two exceptions applies) = 1. in-state D exception or 2. one-year exception

Answer 57

= no removal if any D is a citizen of the forum (in- state D rule)

Answer 58

= no removal more than one year after case was filed in state court

Answer 59

It becomes removable if P voluntarily dismisses the claim against D2 But watch the dates

Answer 60

The in-state D is now gone so there's diversity SO D1 can remove BUT case should be remanded b/c it's - a diversity case - that was removed more than one year after P filed the case in state court UNLESS D1 shows that P acted in BAD FAITH by originally joining D2 to prevent removal

Answer 61

D removes to the federal district EMBRACING the state court where the case was filed

Answer 62

1. D files NOTICE of removal (not motion) in FED court, stating grounds of removal (aka federal SMJ on diversity/FQ) (don't need permission from either court) 2. D attaches all docs served on her in state action 3. D PROMPTLY serves a copy of the notice of removal on adverse parties. 4. D files a COPY of the NOTICE of removal in STATE court.

Answer 63

If P thinks the case should not have been removed, she moves to remand to state court

Answer 64

If P thinks removal was IMPROPER... for some reason OTHER than lack of SMJ (ex = D did not attach relevant papers to her notice of removal) = P must move to remand NO LATER THAN 30 days after notice of removal was filed in federal court b/c fed court LACKS SMJ = P can move to remand @ ANY TIME

Answer 65

Ds remove a diversity case that clearly satisfies diversity requirements BUT there's in-state D and P moves to remand = NOT considered to be a problem of SMJ so P gotta move to remand within 30 days after filing of the notice of removal (if P doesn't, she waives right to have case remanded)

Answer 66

= form of federal SMJ BUT fundamentally different from diversity and FQ. unlike diversity/FW, supp jurisdiction does not get CASES into fed court = it gets CLAIMS into fed case that otherwise don't satisfy/invoke diversity or FQ

Answer 67

starting point = must have case that's already in fed ct (aka case invoked diversity/FQ and is pending in fed ct) then focus on additional claims = in any case in fed ct, additional claims might be asserted in that case (like additional claims by P, counterclaim, crossclaim, etc.)

Answer 68

YES - each claim must have fed SMJ - if claim doesn't, it can't be asserted in pending case in fed ct AKA each additional claim is tested to see if it invokes - diversity of citizenship OR - FQ

Answer 69

1. the test = claim must share COMMON NUCLEUS OF OPERATIVE FACT w/ claim invoking SMJ (this is ALWAYS met when claim arises from SAME T/O as underlying case) ---- 2. the limitation BUT by statute certain claims can't get supp j even though they meet the test -- APPLIES ONLY IN DIVERSITY cases -- EXCEPTION to limitation = when there are multiple Ps and claim by one of them doesn't meet AIC req (there's a hypo in the outline, but, let's be real; we're not typing that up into this flashcard WAIT I JUST NOTICED YOU DID TYPE IT UP IN THE SUMMARY CARD WHAT IS WRONG WITH YOU)

Answer 70

non-FQ, non-diversity claim can be heard in fed ct if it meets the same T/O test UNLESS it is meets 3 requirements 1. asserted by P 2. in a diversity (not FQ) case 3. with multiple Ps where one P doesn't meet AIC aka if the only reason a claim (by P in a case invoking diversity jurisdiction arising out the same T/O) would not get SMJ is failure to meet AIC req = then that claim gets SUPP J

Answer 71

even if supplemental jurisdiction reqs are met, court has discretion to decline it if 1. state law CLAIM is COMPLEX or state law ISSUES would PREDOMINATE in the case 2. FEDERAL CLAIM was DISMISSED EARLY in the case (more likely scenario)

Answer 72

- we have a diversity of citizenship case in fed ct - fed judge must decide a particular issue - key inquiry = when she decides that issue, must she follow state law or is she free to ignore state law?

Answer 73

1. ask = is there some federal law on point that DIRECTLY CONFLICTS with state law? yes =apply fed law, as long as it's valid 2. if no fed law is on point, apply STATE LAW if the issue is SUBSTANTIVE (some issues are clearly substantive - don't worry, we have a separate card) 3. if not CLEARLY substantive, WEIGH FACTORS to determine if substantive/procedural - if substantive = state law - if procedural = federal law

Answer 74

FRCP are presumed valid they're ok if they're ARGUABLY PROCEDURAL

Answer 75

1. elements of a claim or defense 2. statutes of limitations 3. rules for tolling of statutes of limitations 4. conflict (or choice) of law rules, and 5. standard for whether to grant a new trial because a jury's damages determination is excessive or inadequate ---- note = on these issues, the federal court MUST apply STATE LAW

Answer 76

1. OUTCOME DETERMINATIVE = would applying or ignoring the state rule affect the outcome of the state? yes = probs substantive 2. BALANCE OF INTERESTS = does either fed or state system have strong interest in having its rule applied? yes = go with that one! 3. AVOID FORUM SHOPPING = if fed court ignores state law on this issue, will it cause parties to flock to federal court? yes = should probably apply state law lmao

Answer 77

Erie says no GENERAL federal common law = general law of torts/contracts/property is STATE law and federal courts must apply that state substantive law in a diversity case BUT there are areas with federal common law, especially: 1. international relations 2. admiralty 3. disputes between states

Answer 78

venue tells us exactly WHICH federal court is proper district

Answer 79

P may lay venue in ANY district where 1. All Ds reside (AND if all Ds reside in different districts of the forum state = P can lay venue in the district where ANY D resides) 2. SUBSTANTIAL part of the claim arose (which can be in more than one district)

Answer 80

venue = in fed district embracing state ct where action was filed

Answer 81

no, same in both

Answer 82

in the district where DOMICILED

Answer 83

in ALL districts where subject to PJ for this case

Answer 84

transferor = original court transferee = court to which the case is sent

Answer 85

case goes from one trial court in a judicial system to another trial court in the same judicial system BUT transferee must - be a proper venue and - have PJ over D GENERALLY, those must be true without waiver by D BUT statute #1 exception (original district is proper) = court can transfer to any district (even improper venue) if - all parties consent and - court finds cause for transfer (but unlikely P will consent, so it’s not clear this happens much)

Answer 86

statute #1 = original district is a PROPER venue statute #2 = original district is an IMPROPER venue

Answer 87

If original district is PROPER venue, that court can order transfer 1. based on CONVENIENCE of parties/witnesses and 2. in the interest of JUSTICE b/c transfer overrides P’s choice of forum (and b/c P chose a proper venue) = BURDEN is on person seeking transfer (usually D) in deciding whether to transfer the case, court looks to PUBLIC and PRIVATE INTEREST FACTORS showing that the transferee is the center of gravity

Answer 88

= things like - what law applies - what community should be burdened with jury service - the desire to keep a local controversy in a local court

Answer 89

= convenience (ex = where the evidence and witnesses are) NOTE = existence of valid FORUM SELECTION CLAUSE prescribing venue in the other federal distract establishes that the private factors support transfer

Answer 90

= a provision in which the parties agree that a dispute between them will be litigated in a particular place If one party sues other in violation of FSC, D may seek to enforce FSC through a motion to transfer (assuming forum selection clause called for litigation in proper federal district) fed law enforces FSCs (if they’re not unreasonable) (some states do not BUT in fed ct, federal law governs transfer = fed ct may enforce a FSC even though state court in that state would not)

Answer 91

if original district is IMPROPER venue, ct may - transfer in interest of justice or - dismiss usually ct will transfer is possible and transferee applies COL of state in which is sits (in diversity), NOT COL rules of transferor district

Answer 92

= when there's another ct that's center of gravity, that makes more sense than present court (like transfer) BUT unlike transfer, more convenient ct is in a different judicial system ``` = it's impossible to transfer, so court instead it - DISMISSES or - STAYS the case (either way, the idea is that P will then sue in other court) ```

Answer 93

= to hold in abeyance | aka nothing happens in the case

Answer 94

decision is based on same public/private factors as transfer, including existence of valid FSC also other court must be AVAILABLE and ADEQUATE

Answer 95

probs gonna be adequate unless P can get no remedy

Answer 96

filing this commences an action (this is actually what it do)

Answer 97

1. statement of grounds of SMJ 2. short and plain statement of claim, showing entitled to relief 3. demand for relief sought NOTE = P need NOT allege grounds of PJ or venue

Answer 98

fed ct traditionally used = only need enough detail to put other side on notice NOW SC requires more detail (Twombly and Iqbal)

Answer 99

must pled facts supporting a plausible claim - to determine plausibility judge uses her own experience and common sense

Answer 100

D can challenge complaint by making R.12(b)(6) motion

Answer 101

1. fraud 2. mistake 3. special damages must be pleaded with PARTICULARITY or SPECIFICITY

Answer 102

R.12 requires D to respond in one of two ways 1. motion or 2. answer

Answer 103

To avoid default, D must respond (with answer or R.12(b) motion) no later than 21 days after being served with process If D waived service, D has - 30 days if inside US - 60 days if outside US from when P mailed waiver form

Answer 104

RULE 12 | = requests for a court order NOT pleadings

Answer 105

12(e) motion for more definite statement = complaint so vague/ambiguous D simply can't respond D MUST make this motion before answering 12(f) motion to strike = asks court to remove redundant or immaterial things from pleadings ANY party may move for this

Answer 106

(1) lack of SMJ (2) lack of PJ (3) improper venue (4) improper process (5) improper service of process (6) failure to state a claim (7) failure to join indispensable party These defenses can be put either in a motion to dis- miss or in the answer.

Answer 107

(2) lack of PJ (3) improper venue (4) improper process (5) improper service of process = MUST BE PUT IN FIRST R.12 RESPONSE (MOTION OR ANSWER) OR ELSE THEY'RE WAIVED

Answer 108

any time through trial

Answer 109

any time through trial

Answer 110

no | = whenever court determines there's no SMJ, MUST dismiss or, if case had been removed from state ct, must remand

Answer 111

must serve answer w/in 14 days of notice of denial

Answer 112

= a pleading D does 2 things in answer 1. respond to allegations of complaint 2. raise affirmative defenses

Answer 113

1. Admit 2. Deny 3. State that you lack sufficient information to admit or deny - has effect of a denial, - cannot use if answer to question is in your control

Answer 114

failure to deny constitutes an admission except as to damages

Answer 115

these inject NEW FACT into the case, which will allow D to win classic examples = - SOL - SOF - res judicata - self-defense also all Rule 12(b) defenses

Answer 116

D may be deemed to have waived it

Answer 117

NO | allegations in D’s answer are deemed denied

Answer 118

1. right to amend 2. if there is no right to amend 3. variance 4. amendment after the SOL has run (aka relation back)

Answer 119

P has a right to amend her complaint once no later than 21 days after D serves her first R.12 response (either a motion or answer)

Answer 120

D has a right to amend her answer once no later than 21 days of serving her answer

Answer 121

YES a right to amend saves the waivable defenes

Answer 122

party must seek leave of court | will be granted if JUSTICE SO REQUIRES factors = delay, prejudice, and futility of amendment

Answer 123

that’s where the evidence at trial does not match what was pleaded if P does this (ex: evid of assault when claim was breach of contract), if D does NOT object = we amend to plead the assault claim BUT, if D DOES object = evidence is inadmissible because it is "at variance with the pleadings

Answer 124

(amendment after the SOL has run) 1. to join a claim not originally asserted 2. to change a D after statute has run

Answer 125

if P files complaint BEFORE statute of limitations but amends AFTER statute of limitations = not barred if the amendment RELATES BACK amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading = you treat amended pleading as though filed when original filed, so avoids statute of limitations problem

Answer 126

still has to relate back amendment will relate back if: 1. it concerns same conduct, transaction, or occurrence as the original; 2. new D knew of this case within 90 days of filing; 3. new D also knew/should have known that, but for a mistake, she would have been named originally. NOTE: applies when P sued the wrong D first, but the right D knew about it.

Answer 127

set forth things that happened AFTER the pleading was filed

Answer 128

NO must make a motion whether it should be granted = in DISCRETION of court

Answer 129

applies to all documents except discovery (treated by diff rule) signature of lawyer or pro se party certifies that - to the best of her knowledge and belief - after reasonable inquiry 1. doc is not for IMPROPER PURPOSE and 2. LEGAL contentions are WARRANTED by law (or NONFRIVOLOUS argument for law CHANGE) and 3. FACTUAL contentions/denials have EVIDENTIARY support (or are likely to after further investigation) this is a CONTINUING certification = you make this certification every time you present a position to the court (ex = when you later advocate a position taken in doc)

Answer 130

the party, attorney, or firm responsible | general rule = law firm is jointly responsible with its attorney who violates R.11

Answer 131

1. if the other party violates R.11, serve the motion on other parties but cannot file it immediately 2. party in violation has a SAFE HARBOR of 21 days in which to fix the problem and avoid sanctions 3. if violator doesn't, then motion can be filed NOTE = before imposing any sanction, court must give party chance to be heard

Answer 132

court can raise R.11 sanctions SUA SPONTE and there's NO safe harbor court usually issues an OSC (order to show cause) why sanctions should not be imposed NOTE = before imposing any sanction, court must give party chance to be heard

Answer 133

to DETER | not to punish

Answer 134

Often, courts impose NON-MONETARY sanctions (ex = require lawyer to attend professionalism classes) MONETARY sanctions, if imposed, are often paid to court, not to the other party

Answer 135

define the scope of the case = how many parties and claims can be joined in one case? REMEMBER every single claim in fed ct must have SMJ

Answer 136

P (in fact, anyone asserting a claim) may join any additional claim she likes—even if additional claim is unrelated to the original claim BUT, still have to make sure there's SMJ

Answer 137

``` multiple Ps can sue together or multiple Ds can be sued together when their claims 1. arise from the SAME T/O and 2. raise at least one COMMON Q ``` BUT with these parties, assess whether case invokes diversity or FQ

Answer 138

court might force ABSENTEE to join in case because he is necessary three-step analysis 1. who's necessary (aka required)? 2. can A be joined? 3. what if A cannot be joined?

Answer 139

aka required A who meets any of these tests 1. w/o A, court cannot accord complete relief among existing parties (worried about multiple suits) 2. A’s interest may be harmed if he is not joined (practical harm) ** probs most likely on bar exam ** 3. A claims an interest that subjects a party (usually D) to a risk of multiple obligations

Answer 140

TRICK. never.

Answer 141

if A is necessary, court assesses if joinder of A is FEASIBLE = (1) there is PJ over A and (2) joining A will not goof up diversity jurisdiction If joinder is feasible, court orders joinder of A

Answer 142

if A cannot be joined, court MUST do one of two things = 1. proceed w/o A 2. dismiss entire case (aka A is INDISPENSABLE + remember R.12(b) defense of dismissal for failing to join indispensable party) FACTORS for this choice - is there an alternative forum available? - what is the actual likelihood of harm to you? - can the court shape relief to avoid that harm to you?

Answer 143

= claim against an opposing party who asserted claim against you (usually this is claim by D against P, as part of D’s answer)

Answer 144

respond under R.12 w/in 21 days of service

Answer 145

1. compulsory | 2. permissive

Answer 146

arises from the SAME T/O as P’s claim = unless you have already filed claim in another case, must assert it IN THIS CASE (if you don't use it, ya lose it) NOTE = unique (very) b/c ONLY COMPULSORY CLAIM IN THE WHOLE WORLD

Answer 147

NOPE. B was not required to answer (b/c she got the case dismissed) = so she wasn't required to assert the counterclaim

Answer 148

does NOT arise from same T/O as P’s claim | = not required to file it in this case, may sue on it in a separate case

Answer 149

REMEMBER ya gots to assess whether counterclaim invokes diversity or FQ jurisdiction - yes = gucci in fed court - no = try supplemental jurisdiction

Answer 150

= claim against a co-party MUST arise from the SAME T/O as the underlying action (but NOT compulsory—you may assert it here or sue separately)

Answer 151

when a defending party (usually D) is bringing in new party = 3PD (third-party defendant) D can do this ONLY to shift to 3PD the liability that D will owe to P So if D is found liable to P, he will try to get 3PD to pay all or part of his own liability TE$T TIP = may be called third-party practice on bar exam

Answer 152

NOPE. | only compulsory claim = compulsory counterclaim, how many times we gotta say it

Answer 153

almost always a claim for INDEMNITY or CONTRIBUTION

Answer 154

Those claims shift liability that D owes P over to 3PD Indemnity shifts it completely (so 3PD must cover full claim) Contribution shifts it pro-rata (so 3PD must cover a pro-rata portion of the claim)

Answer 155

1. D files a third-party complaint naming 3PD 2. D serves process on 3PD (so must have PJ over 3PD) RIGHT to implead WITHIN 14 DAYS of serving answer (after that = need court permission)

Answer 156

YES if the claim arises from the same T/O as the underlying case

Answer 157

YES if the claim arises from the same T/O as the underlying case

Answer 158

REMEMBER to assess each claim separately for SMJ | first diversity/FQ, then supp

Answer 159

NO P is not a party to this claim, so P’s citizenship is irrelevant to this claim

Answer 160

``` where nonparty brings herself into the case = chooses to come in either as P (to assert a claim) or as D (to defend a claim) ``` application to intervene must be TIMELY NOTE = court may realign her if it thinks she came in on the wrong side

Answer 161

1. intervention of right | 2. permissive intervention

Answer 162

A’s interest may be harmed if she is not joined and is not adequately represented now (yeah, same test as for necessary parties)

Answer 163

A’s claim or defense and the pending case have at least one common question Discretionary with court = usually OK unless intervention will cause delay or prejudice to someone

Answer 164

assess whether the claim by/against the intervenor invokes diversity or FQ if NEITHER = try supplemental (BUT remember a claim by intervenor P in a diversity case = claim by a P, so limitation on supplemental jurisdiction may apply)

Answer 165

Must demonstrate all four of these 1. NUMEROSITY = Too many class members for practicable joinder (no magic number) ``` 2. COMMONALITY = There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke ``` 3. TYPICALITY = Rep’s claims are typical of those of the class ``` 4. ADEQUATE REP = class Rep will fairly and adequately represent class ```

Answer 166

1. prejudice 2. injunctive/declaratory relief 3. damages

Answer 167

aka PREJUDICE (limited fund) class = class treatment necessary to AVOID HARM either to class members or to the non-class party common example = - where many people have claims to a limited fund of money - if they sue individually, the fund will be depleted before all claimants get to court, leaving later claimants w/ nothing - to avoid this harm, a class would allow everybody to recover at least a portion of her claim

Answer 168

aka INJUNCTIVE RELIEF class = where class seeks an injunction or declaratory judgment because D treated the class members alike NOTE = generally cannot seek damages

Answer 169

aka DAMAGES class = class action seeking damages (where there isn't a limited fund) court MUST NOTIFY class members that they are in a class w/ individual notice (usually by mail) to all reasonably identifiable members, telling them 1. they can OPT OUT 2. they’ll be BOUND by the judgment if they don’t 3. they can enter a SEPARATE APPEARANCE through counsel key example = mass tort

Answer 170

``` even though complaint says class action, case won't become class action until COURT GRANTS MOTION TO CERTIFY it as a class action ```

Answer 171

case wont become class action until COURT GRANTS MOTION TO CERTIFY it as a class action when it certifies the class action, court must DEFINE - the class - the class claims, issues, or defenses if it certifies the class counsel, the court must also appoint class counsel

Answer 172

class counsel must fairly and adequately represent the interests of the class

Answer 173

if you lose on the class certification motion, you may ask the court of appeals to review that decision aka it's final for the purposes of interlocutory relief but review is DISCRETIONARY with the appeals court

Answer 174

FOR TYPE 3 class, court must NOTIFY class members that they are in a class = individual notice to all reasonably identifiable members (usually by mail) notice tells them various things, including - they can opt out - they’ll be bound if they don’t - they can enter a separate appearance through counsel NOT required in type 1 or type 2 cases

Answer 175

the class rep

Answer 176

no right to opt out of type 1 or type 2 cases type 3 class members who opt out are not bound by the judgement in certified class action

Answer 177

all class members except those who opted out of type 3

Answer 178

parties need COURT APPROVAL to settle or dismiss certified class action ``` in all class types, court gives NOTICE to class members to get their feedback on whether the case should be settled or dismissed (if it's type 3, court might give members a second chance to opt out) ```

Answer 179

class action might assert rights under fed law = would invoke FQ class seeks to invoke diversity jurisdiction -- citizenship = consider only REP (ignore other class members’ citizenships) -- AIC = rep’s claim must exceed $75,000 (ignore other class members’ claims) = class action will invoke diversity as long as 1. rep is diverse from all Ds and 2. rep’s claim exceeds $75K

Answer 180

aka CAFA grants SMJ separate from diversity of citizenship jurisdiction (makes it easier for interstate class actions to go to fed ct) ``` = lets fed ct hear class action of AT LEAST 100 MEMBERS if - ANY CLASS MEMBER (not just rep) is of DIVERSE citizenship from ANY D and - AGGREGATED claims of class exceed $5M ``` ``` ALSO has complicated provisions to ensure that LOCAL CLASSES (where most class members and primary Ds are citizens of same state) do NOT stay in fed ct (they get dismissed or remanded to state court) ```

Answer 181

= the phase of litigation in which we find out what other people know basic idea is to avoid trial by ambush (we want things known before we go to trial)

Answer 182

= information that each party must give to other parties—even though no one asks for it

Answer 183

within 14 days of R.26(f) conference | unless a court order or stipulation of parties says otherwise??????

Answer 184

unless a court order or stipulation of parties says otherwise, 1. ID's of persons who have discoverable info that the disclosing party may use to support your claims or defenses (includes name, telephone, number, address, and topics) 2. docs and things the disclosing party may use to support its claims/defenses (producing a copy or description will suffice) 3. computation of relief and documents/ESI supporting it 4. insurance coverage (D must disclose any insurance that might cover all or part of the judgment in the case)

Answer 185

what? yes, this is stupid. (includes things on your computer, videos and photos taken on your smartphone, etc., as well as good old-fashioned papers)

Answer 186

nothing--only things in your control MUST be disclosed

Answer 187

YES | discoverable = broader than admissible

Answer 188

fail to disclose something you were REQUIRED to disclose = CAN'T use that material in the case UNLESS failure to disclose was - SUBSTANTIALLY JUSTIFIED or - HARMLESS

Answer 189

each party must identify expert witnesses who MAY BE USED @ TRIAL = people who, b/c of EXPERTISE, are hired to give OPINION testimony in the case

Answer 190

at a time directed by the court | after initial required disclosures i guess

Answer 191

party hired an expert to help it prepare the case, but does not intend to call that expert to testify at trial = consulting expert (NOT an expert witness) facts known/opinions held by consulting experts = generally not discoverable EXCEPT in exceptional circumstances

Answer 192

for EW who may be used @ trial, each party generally must disclose - identity of EW - written report by EW

Answer 193

must include 1. opinions EW will express 2. bases for the opinions 3. facts used to form the opinions 4. EW’s qualifications 5. how much EW is being paid

Answer 194

after receiving EW's identity/written report, party can take a deposition of EW should subpoena EW to compel her attendance that party must pay EW a reasonable fee per hour (set by the court)

Answer 195

earlier drafts of EW report and communications between the lawyer and the EW are work product

Answer 196

if you fail to disclose something you were required to disclose = cannot use EW in case UNLESS failure was justified or harmless

Answer 197

must give detailed information about trial evidence, including - identity of witnesses to testify live or by deposition - documents/ESI/things to be introduced at trial

Answer 198

NO LATER than 30 DAYS BEFORE TRIAL

Answer 199

= when one party requests information from other people party CAN'T send discovery requests to ANOTHER PARTY until AFTER R.26(f) conference UNLESS court order or stipulation provides otherwise minor EXCEPTION = can serve REQUESTS to PRODUCE more than 21 days after service of process (treated as though served at R.26(f) conference)

Answer 200

= person (deponent) gives LIVE testimony UNDER OATH in response to Qs by counsel or pro se parties Qs are usually oral but can be written (if written, they are read by the court reporter) deposition is RECORDED by sound or video or stenographically and a transcript can be made to depose = - subpoena nonparty - serve notice of deposition on party

Answer 201

no, can testify from present recollection

Answer 202

requires deponent to bring requested materials with her

Answer 203

unless a nonparty agrees, the farthest she can be required to travel to have her deposition taken = 100 miles from where she resides or is employed

Answer 204

NO MORE THAN 10 depositions each one CAN'T exceed ONE DAY of SEVEN HOURS unless court orders or parties stipulate CAN'T depose SAME person TWICE without court approval or stipulation

Answer 205

(all subject to rules of evidence) 1. impeach deponent 2. ANY purpose if deponent is ADVERSE party 3. ANY purpose if deponent (nonparty or party) is UNAVAILABLE for trial UNLESS that absence was procured by party seeking to introduce the evidence

Answer 206

= written questions, to be answered IN WRITING UNDER OATH can be sent ONLY to PARTIES NEVER to nonparties

Answer 207

30 DAYS from service of interrogatories | plus an extra 3 DAYS if they were MAILED

Answer 208

can send no more than 25 interrogatories (unless there's a court order or stipulation for more) INCLUDING subparts (so no more than 25 actual questions)

Answer 209

responding party can allow requesting party to have ACCESS to the records IF - the answers to interrogatories can be found in BIZ RECORDS and - BURDEN of finding them would be about the SAME FOR EITHER PARTY

Answer 210

@ trial, CAN'T use your OWN ANSWERS to interrogatories | obvi other party's answers are fine as long as admissible under rules of evidence

Answer 211

= request that someone - make AVAILABLE for REVIEW/ COPYING documents or things, including electronically stored information (ESI) or - permit you to ENTER designated property to INSPECT/MEASURE/etc requestee MUST respond IN WRITING within 30 DAYS of service either - stating material will be produced or - asserting objections

Answer 212

technically can make these requests of ONLY PARTIES | but practically doesn't matter b/c can get same info by serving nonparty with subpoena duces tecum

Answer 213

requesting party specifies the form responding party may object

Answer 214

NEED A COURT ORDER to get the court order, you must show 1. that the person’s health is in actual controversy and 2. “good cause”

Answer 215

a party or someone in party’s CUSTODY or LEGAL CONTROL | ``` note = this is NARROW ex = employee is not in custody/legal control of employer ```

Answer 216

the party seeking the order chooses the licensed person to perform the exam

Answer 217

if court orders medical exam, party REQUESTING it receives report from doctor who gave the medical exam party that TOOK the medical exam can also receive a COPY of the report by REQUESTING it from court BUT if he does = - must then produce for other party ALL MEDICAL REPORTS by his own doctors re: that medical condition - also WAIVES any doctor/patient PRIVILEGE re: that condition

Answer 218

= a written request that someone admit things | often used to authenticate documents ex = "admit that this is the contract"

Answer 219

ONLY to parties NEVER to nonparties

Answer 220

``` responding party must respond IN WRITING within 30 days of service by either - denying specifically or - objecting ```

Answer 221

only if she states she made a reasonable inquiry and cannot find enough information from which to admit or deny

Answer 222

1. depositions 2. interrogatories 3. requests to produce 4. medical exam (physical or mental) 5. requests for admission

Answer 223

parties sign substantive answers to discovery under oath R.11 doesn't apply to discovery docs by a mysterious other rule (probs R.26), every discovery request/response is signed by counsel certifying - it is WARRANTED - it is NOT interposed for IMPROPER PURPOSE - it is NOT UNDULY BURDENSOME

Answer 224

``` if new circumstances make responses to - required disclosure - interrogatory - request for production - request for admission either incomplete or incorrect = have a duty to supplement response ```

Answer 225

can discover anything RELEVANT to a claim/defense and PROPORTIONAL to the needs of the case

Answer 226

DISCOVERABLE = much broader than ADMISSIBLE @ trial (ex = party can discover something like hearsay, as long as it's relevant to claim/defense and proportional to needs of case)

Answer 227

something harmful to you need not be disclosed in REQUIRED disclosures but might be discoverable using regular discovery tools

Answer 228

disclosing party can object to discovery by asserting that material is NOT REASONABLY ACCESSIBLE b/c of UNDUE BURDEN/CO$T then either - disclosing party can move for a protective order OR - requesting party move to compel discovery then court determines whether requested material reasonably accessible b/c of undue burden/cost then requesting party has the opp to show GOOD CAUSE for the discovery then if good cause is shown, court can order production and allocate the expense btwn parties

Answer 229

can object to discovery on basis of evidentiary attorney/client privilege

Answer 230

aka “trial preparation materials” = material prepared in anticipation of litigation NOTE = need not be generated by a lawyer

Answer 231

QUALIFIED work product = may be discoverable if requesting party shows - a SUBSTANTIAL NEED and - the info is NOT OTHERWISE AVAILABLE by alt means ``` ABSOLUTE work product = cannot be discovered, absolutely protected, usually referred to as opinion work product - includes (1) mental impressions (2) opinions (3) conclusions (4) legal theories ```

Answer 232

identity of people with discoverable info is always discoverable

Answer 233

a party has the right to demand discovery of any previous statement that he has made regarding the case

Answer 234

if you withhold discovery or seek a protective order based on privilege or work product, you must - claim the protection EXPRESSLY and - DESCRIBE materials in DETAIL in a document called a PRIVILEGE LOG

Answer 235

lists materials protected by date, author, recipient, and privilege/protection claimed must be in enough detail to allow the judge to determine whether the material is protected

Answer 236

should notify party PROMPTLY ``` other party must - return or - sequester or - destroy pending decision by court about whether there has been waiver ```

Answer 237

1. protective order 2. responding party responds but not fully 3. no response to discovery request

Answer 238

party seeking protective order or sanctions must certify that she tried in GOOD FAITH to resolve issue w/o court involvement (asked the other side to MEET + CONFER)

Answer 239

if responding party thinks discovery request - subjects it to annoyance, embarrassment, undue burden/expense OR - is cumulative and not proportional to the case = must certify that she tried in GOOD FAITH to resolve issue w/o court involvement (asked the other side to MEET + CONFER) if court agrees, it can 1. deny discovery or 2. limit it or 3. permit it on specified terms

Answer 240

less than full response = when responding party does respond, but fails to answer all Qs b/c he objects to them (or some of them) TWO STEPS of sanctions 1. MOTION TO COMPEL party to answer unanswered questions + COSTS (including attny fees) of bringing motion 2. if party then violates order = - MERITS SANCTIONS + COSTS (and attny fees re: motion) - also could be held in CONTEMPT for violating ct order (EXCEPT no contempt for refusal to submit to medical exam)

Answer 241

no response = when responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production only ONE STEP for sanctions (aka no need to get an order compelling answers) = MERITS SANCTIONS + COSTS (and attny fees for motion)

Answer 242

5 choices available to judge = 1. ESTABLISHMENT ORDER (establishes facts as true) 2. STRIKE PLEADINGS of disobedient party (as to issues re: discovery) 3. DISALLOW EVIDENCE from disobedient party (as to issues re: discovery) 4. DISMISS P's case if BAD FAITH shown 5. enter DEFAULT JUDGMENT against D if BAD FAITH shown

Answer 243

when litigation is reasonably anticipated, parties must PRESERVE discoverable information if info is truly lost (cannot be recovered or restored) because party in control of it failed to take reasonable steps to preserve it = court may order measures to cure harm caused to other party (like adverse inference order)

Answer 244

= court will tell jury that it MUST PRESUME that lost info would be UNFAVORABLE to violating party ONLY IF you can show other party lost info w/ INTENT TO DEPRIVE you of it (very high burden to meet)

Answer 245

various ways case can be resolved w/o going to trial plus also there's provisional (temporary) injunctive relief 1. preliminary injunctive relief (prelim injunction + TRO) 2. voluntary dismissal 3. default and default judgment

Answer 246

a court order that D either (1) do something or (2) refrain from doing something generally, courts hesitant about doing this because the merits of the underlying dispute have not been decided types 1. TRO 2. preliminary injunction = order that maintains the status quo until trial

Answer 247

court issues TRO ex parte ONLY if 1. applicant files paper under oath clearly showing w/o, will SUFFER IMMEDIATE + IRREPARABLE HARM if has to wait until other party is heard 2. applicant’s LAWYER CERTIFIES in writing - EFFORTS to give oral/written notice to D or D’s lawyer OR - why such notice SHOULDN'T BE REQUIRED in this case 3. if court issues TRO - applicant must post BOND (security) to cover other side’s costs/damages caused if it turns out the restraint is wrongful - order must be served on D ASAP note = TRO must - state its terms specifically - describe in detail what D must do (or refrain from doing) - state why it was issued and why the threatened injury to P was irreparable

Answer 248

if court issues TRO, D can move to dissolve ruling granting/denying TRO is NOT appealable as of right

Answer 249

- effective for NO MORE THAN 14 days (or lesser time stated by court) - can be EXTENDED UP TO ANOTHER 14 DAYS if applicant shows GOOD CAUSE before expiration = a TRO cannot extend beyond 28 days NOTE = if court extends TRO BEYOND 28 days, it may be treated as preliminary injunction

Answer 250

= order that maintains the status quo until trial burden is on applicant to show = (1) He is likely to suffer irreparable harm if the injunction is not issued; (2) He is likely to win on the merits of the underlying case; (3) The balance of hardship favors him (threatened harm to Applicant outweighs harm to other party if the injunction is issued); and (4) The injunction is in the public interest NO RIGHT to injunction = matter is in court's discretion

Answer 251

can NOT be granted ex parte must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued (same as w/ TRO) if the court grants preliminary injunction, the applicant must post a BOND (same as w/ TRO) in granting/denying preliminary injunction, court must make specific findings of fact and separate conclusions of law

Answer 252

if P wants to withdraw the case, P can make a MOTION for voluntary dismissal ANY TIME, which the court has discretion to grant P has a RIGHT to take a voluntary dismissal by filing a NOTICE of dismissal BUT must do so BEFORE D SERVES answer or SJ motion

Answer 253

if P files TIMELY NOTICE of dismissal = case is dismissed WITHOUT PREJUDICE aka P can refile the case later

Answer 254

can only dismiss without prejudice ONCE if P files a notice of dismissal in the second case = dismissal is WITH PREJUDICE aka P can NOT refile the case

Answer 255

when D does not respond to the complaint in time aka 21 days after being served with process or 30 days from mailing of waiver if inside US 60 days from mailing of waiver if outside US

Answer 256

= a notation by the court clerk on the docket sheet in the case

Answer 257

court clerk does NOT enter default AUTOMATICALLY = P must REQUEST ENTRY of default by demonstrating D failed to respond in time until default is entered, D can respond by motion or answer (EVEN beyond 21 days)

Answer 258

effect of entry of default = cuts off D's right to respond entry of default does not entitle P to recover = P needs to get a default judgment before she can recover from D

Answer 259

clerk of court can enter judgment if 1. D made NO RESPONSE at all 2. claim itself is for a SUM CERTAIN in money 3. claimant gives an AFFIDAVIT of the sum owed 4. D is NOT a MINOR/INCOMPETENT if any of those 4 requirements are not met = P must apply to court itself for default judgment

Answer 260

judge will hold a hearing and has DISCRETION to enter judgment D gets NOTICE of this hearing ONLY IF he APPEARED in the case

Answer 261

limitation #1 = cannot exceed damages stated in complaint limitation #2 = cannot get different relief from what was pled note = obvi if case goes to trial, P can recover more (and a different) relief than what she put in complaint

Answer 262

D may move to have the court set aside a default or default judgment by showing - good cause (like excusable neglect) and - viable defense

Answer 263

about whether the case belongs in the litigation stream at all = if P’s complaint fails to state a claim, case can be dismissed

Answer 264

in ruling on this motion, court - ignores P’s legal conclusions - looks only at P’s allegations of fact in the complaint (does not look evidence, only at face of complaint) - and asks = assuming these facts as true, do they state a PLAUSIBLE CLAIM? if no, P has not stated a plausible claim = no sense letting the case proceed b/c law does not recognize a claim on these facts BUT court might let P amend to try to state a claim note = judge uses her experience and common sense to see if the facts state a plausible claim

Answer 265

if after D's answer = same as a motion for judgment on the pleadings

Answer 266

SJ weeds out cases in which we DON'T NEED TRIAL the reason we ever have a trial is TO RESOLVE DISPUTES OF MATERIAL FACT

Answer 267

party moving for summary judgment must show 1. there's NO GENUINE DISPUTE of MATERIAL FACT and 2. that she's ENTITLED to JUDGMENT as MATTER OF LAW BUT even if standard is met, court has DISCRETION to deny SJ

Answer 268

ANY party can move for this NO LATER THAN 30 DAYS after CLOSE of DISCOVERY

Answer 269

CAN make motion for PARTIAL judgment but allow the case to go to trial on damages (ex = as to liability)

Answer 270

court can look @ EVIDENCE for SJ, viewing it in LIGHT MOST FAVORABLE to NONMOVING party

Answer 271

parties proffer the evidence, usually 1. affidavits or 2. declarations or 3. deposition testimony or 4. interrogatory answers (can be considered evidence b/c UNDER OATH)

Answer 272

if party opposing SJ needs more time to find evidence to oppose motion, she may file affidavit or declaration with court stating what that evidence would be court may allow more time for party to obtain evidence

Answer 273

pleadings can only be treated as evidence IF VERIFIED (aka under oath) but this is RARE but pleadings may also be relevant for SJ in this way = if D failed to deny an allegation by P, it can be treated as fact on SJ

Answer 274

judge does not assess credibility on SJ motion | but can consider evidence to ignore/discredit evidence and grant SJ

Answer 275

parties “meet and confer” AT LEAST 21 DAYS BEFORE scheduling order (unless court order says otherwise) parties DISCUSS - production of required initial disclosures - claims - defenses - settlement - preservation of discoverable information parties present to court a detailed DISCOVERY PLAN

Answer 276

must be presented to the court NO LATER THAN 14 DAYS after R.26(f) conference

Answer 277

must include - views and proposals on TIMING - issues about DISCOVERY of ESI (including how it will be produced and any problems retrieving it)

Answer 278

= roadmap for how the litigation proceeds up to trial (unless local rule or court order says otherwise, court enters order scheduling cut-offs for things like - joinder - amendment - motions - completion of discovery

Answer 279

court may hold pretrial conferences to process the case FINAL PRETRIAL CONFERENCE determines - issues to be tried @ trial - evidence to be proffered @ trial = recorded in PRETRIAL CONFERENCE ORDER PRETRIAL CONFERENCE ORDER - supersedes the pleadings - is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. - used to prevent surprises @ trial

Answer 280

if there's jury = jury determines the facts and returns the verdict no jury = the judge determines the facts aka bench trial

Answer 281

= pretrial motion to decide whether jury should hear certain evidence

Answer 282

the Seventh Amendment preserves the right to jury in civil actions @ LAW but NOT in suits @ EQUITY if case includes both law and equity (ex = includes claim for legal relief of damages and for an equitable relief of injunction) = jury decides all facts underlying legal relief but NOT facts underlying equitable relief (if a fact underlies BOTH, jury decides it)

Answer 283

trial will usually proceed in order of legal issues, then equitable issues = try the JURY issues FIRST

Answer 284

TRICK. nope, applies in federal civil cases only

Answer 285

MUST demand jury - in writing - NO LATER THAN 14 days after service of last pleading addressing a jury-triable issue (usually the answer) if you don’t = waive the right to a jury

Answer 286

yes, b/c there has been NO ANSWER on first claim if D had served his answer MORE THAN 14 DAYS BEFORE P made this jury demand = P would have waived jury

Answer 287

voir dire = jury selection process in voir dire, each side might ask court to strike (remove) potential jurors

Answer 288

1. FOR CAUSE aka potential juror will not be impartial limit = NO LIMIT to how many motions to strike FOR CAUSE a party can make 2. PEREMPTORY historically, just dismiss the potential juror (didn't need to state a reason) limit = 3 PER SIDE (not per party) note = may only be used in RACE-/GENDER NEUTRAL MANNER b/c state action

Answer 289

``` min = 6 max = 12 ``` generally, all jurors participate in the verdict unless excused for good cause

Answer 290

must be UNANIMOUS | unless parties agree otherwise

Answer 291

jury decides facts, but is instructed on the law by the judge parties submit proposed jury instructions to the judge @ CLOSE of ALL EVIDENCE (or earlier if the court says so) BEFORE final argument/instruction, court informs parties of 1. what instructions it will give and 2. what proposed jury instructions it rejected parties must be allowed to make specific objections - on the record and - out of jury's hearing to both the instructions and rejection of proposed instructions

Answer 292

if objections are not made before the jury is “charged” (given the instructions) = party CAN'T raise problem with jury instructions - in a post-trial motion or - on appeal EXCEPTION = even if party did not object TIMELY, a court can consider a jury instruction if it contained PLAIN ERROR

Answer 293

judge determines what verdict form the jury will use 1. GENERAL = just says who wins and, if P wins, what the relief is 2. SPECIAL = jury answers in writing specific written questions about the facts in dispute, but does not tell us who wins or loses 3. GENERAL VERDICT w/ WRITTEN Qs = jury not only gives a general verdict, but it also answers specific submitted questions (that ensure jury focused on the important issues)

Answer 294

if jury returns GENERAL verdict = clerk of court enters the judgment if the jury returns - SPECIAL verdict or - GENERAL VERDICT w/ WRITTEN Qs and the answers are CONSISTENT with each other and with the verdict = judge approves judgment and clerk enters it if jury returns GENERAL VERDICT w/ WRITTEN Qs and the answers are CONSISTENT w/ each other but INCONSISTENT w/ the verdict = court may a. enter an appropriate judgment consistent with the answers or b. tell the jury to reconsider or c. order a new trial if jury returns GENERAL VERDICT w/ WRITTEN Qs and the answers are INCONSISTENT w/ each other and one or more is INCONSISTENT w/ general verdict = court cannot enter judgment and either a. instructs the jury to reconsider or b. orders a new trial

Answer 295

generally, verdict may be IMPEACHED based upon EXTERNAL matters new trial can be ordered if - if jurors were bribed - based the verdict on their investigation of matters outside of court instead of the evidence at trial BUT verdict will not be set aside if the misconduct was harmless non-jurors may give first-hand evidence of such things

Answer 296

when there is no jury (either Seventh Amendment did not apply or parties waived right to jury trial) = JUDGE determines the facts at trial judge must 1. state on the record or in writing findings of fact and separate conclusions of law 2. enter judgment (very short = who wins and what relief)

Answer 297

1. JMOL 2. RJMOL 3. for new trial 4. remittitur/additur

Answer 298

for centuries, this was called “directed verdict.” It ap- plies in jury trial. If the judge grants JMOL, the case will not go to the jury—the judge grants the motion and enters judgment. The motion is based upon evidence presented at trial. Why would a judge grant JMOL and refuse to let the jury decide the case? b/c reasonable people could not disagree It’s like summary judgment (where there was no dis- pute of material fact), except that this comes up at trial instead of before trial. Like summary judgment, the court views the evidence in the light most favorable to the non-moving party.

Answer 299

When can a party move for JMOL? | after other side has been heard @ trial

Answer 300

aka RJMOL may be granted when jury reached a conclusion that reasonable people could not have reached (like JMOL, court views the evidence in the light most favorable to the non-moving party) if granted, court enters judgment for party that lost the jury verdict 2 requirements 1. must have moved for JMOL at proper time at trial and 2. RJMOL motion must be based upon the same grounds as the JMOL motion

Answer 301

move for RJMOL WITHIN 28 DAYS AFTER entry of judgment

Answer 302

used when judgment is entered, but some error at trial requires that we should start over and have a new trial can be based on any (non-harmless) error that makes the judge think we should have a do-over

Answer 303

1. judge gave ERRONEOUS JURY INSTRUCTION 2. NEW EVIDENCE that could NOT have been gotten before w/ DUE DILIGENCE 3. MISCONDUCT by juror or party or lawyer, etc. 4. judgment is AGAINST WEIGHT OF EVIDENCE 5. inadequate or excessive DAMAGES ex = if party met the standard for RJMOL but waived it by not moving for JMOL at trial = could move for new trial on the grounds that the verdict is against the weight of the evidence

Answer 304

party moves for this WITHIN 28 DAYS AFTER JUDGMENT

Answer 305

ordering new trial is less drastic than ordering RJMOL (b/c new trial results in starting over, so the same party might still win) RJMOL results in taking judgment away from one party and giving it to the other

Answer 306

possible ground for new trial = jury’s damages figure is excessive or inadequate majority/fed standard for ordering new trial = damages figure SHOCKS the CONSCIENCE but court might suggest remittitur or additur to avoid new trial REMITTITUR (playing hardball with P) - permissible in state court - permissible in federal court BUT court must give P choice of accepting lower amount or going to a new trial (just lowering it violates 7th amendment) ADDITUR (playing hardball with D) - permissible in state court - unconstitutional in federal court (violates 7th amendment)

Answer 307

***wtf is this AT LEAST 14 DAYS BEFORE TRIAL, D offers to pay to settle P’s claim P can accept and judgment will be entered for that amount P can reject it and go to trial - if P wins a judgment that is not more favorable than the offer = P is liable to D for D’s costs incurred after the offer was made

Answer 308

ask the district court to set aside an order or judgment it entered

Answer 309

1. Clerical error = Any time 2. Mistake, excusable neglect (including viable defense) = Reasonable time (never more than 1 year) 3. Fraud, misrepresentation, or misconduct by opposing party = Reasonable time (never more than 1 year) 4. New evidence that could not have been dis- covered with due diligence for a new trial motion = Reasonable time (never more than 1 year) 5. Judgment is void (e.g., no SMJ) = Reasonable time (no maximum)

Answer 310

= when fed district ct has entered an order and losing party wants to seek review by US Court of Appeals for the appropriate circuit

Answer 311

loser has right to appeal if order is a FINAL JUDGMENT = one that determines the MERITS of the entire case to determine whether final judgment, ask after making the ruling, does trial judge have anything left to do ON THE MERITS of the case? -- yes = interlocutory order, not final judgment NOTE = when case is removed then fed ct remanded it to state ct, remand order generally can NOT be appealed to US Court of Appeals (per statute)

Answer 312

file notice of appeal of final judgment in district court WITHIN 30 DAYS after entry of judgment

Answer 313

interlocutory = non-final If district court’s order is not a final judgment, it might be appealable based upon one of these 6 doctrines 1. orders reviewable as of right 2. interlocutory appeals act 3. collateral order doctrine 4. multiple claims and parties 5. class action 6. extraordinary writ (mandamus or prohibition)

Answer 314

interlocutory orders reviewable as of right = orders granting, modifying, or refusing preliminary or permanent injunctions (does NOT include orders granting, modifying, or refusing TRO unless TRO is extended past 28 days b/c then it's treated as a preliminary injunction)

Answer 315

``` allows appeal of nonfinal order if 1. district judge certifies that it involves a controlling issue of law to which there is substantial ground for difference of opinion AND 2. court of appeals agrees to hear it ```

Answer 316

appellate court has discretion to hear ruling on issue if that issue - is distinct from the merits of the case - involves an important legal question - is essentially unreviewable if parties await a final judgment

Answer 317

when more than one claim is presented in a case OR when there are multiple parties = district court may expressly direct entry of a final judgment as to one or more of them IF it makes an express finding that there is no just reason for delay

Answer 318

court of appeals has DISCRETION to review an order granting or denying CERTIFICATION of class action must seek review at court of appeals WITHIN 14 DAYS of order appeal here does NOT STAY proceedings at district court unless court of appeals or district court says so

Answer 319

= ORIGINAL proceeding in the court of appeals to compel the district judge to make or vacate a particular order NOT a substitute for appeal = available ONLY if district court is VIOLATING a CLEAR LEGAL DUTY

Answer 320

ex = content of jury instruction on burden of proof when district judge decides questions of LAW = court of appeals reviews DE NOVO

Answer 321

in non-jury trial, when district JUDGE decides questions of FACT = court of appeals will affirm unless CLEARLY ERRONEOUS note = court of appeals must give due regard to trial judge's determination of CREDIBILITY

Answer 322

in jury trial, when JURY decides questions of FACT = court of appeals will affirm unless NO REASONABLE JURY COULD'VE MADE THAT FINDING note = court of appeals must give due regard to trial judge's determination of CREDIBILITY

Answer 323

ex = whether to - grant a motion to amend pleadings - allow permissive intervention - give a particular jury instruction on discretionary matters, court of appeals will affirm unless district judge ABUSED her DISCRETION

Answer 324

not every error (even error of law) requires reversal on appeal HARMLESS ERROR = no reversal required

Answer 325

re: issues concerning preclusive effect of a prior judgment on the merits key q = whether a judgment already entered (Case 1) precludes litigation of any matters in another case (Case 2) if Case 1 and Case 2 are in different judicial systems (like state and federal) = court in Case 2 applies preclusion law of the judicial system that decided Case 1

Answer 326

= only get to sue on a claim once aka you only get one case in which to vindicate all rights to relief for that claim

Answer 327

aka res judicata 1. Case 1 and Case 2 were brought by the SAME CLAIMANT against the SAME D 2. Case 1 ended in a valid final judgment ON THE MERITS general rule = unless ct said otherwise when it entered the judgment, any judgment is ON THE MERITS UNLESS it was based on 1. jurisdiction (PJ or SMJ) 2. venue 3. indispensable parties (true even if there was no adjudication in Case 1) 3. Case 1 and Case 2 asserted SAME CLAIM majority/fed view = a claim is any right to relief arising from a transaction or occurrence (T/O) key minority view = there are separate claims for property damage and for personal injuries because those are different primary rights

Answer 328

narrower than claim preclusion an issue was litigated in Case 1, same issue is presented in Case 2 = if issue preclusion applies, will not allow issue to be relitigated in Case 2 (deem it established in Case 2)

Answer 329

aka collateral estoppel 1. Case 1 ended in a VALID FINAL JUDGMENT ON THE MERITS 2. SAME ISSUE issue was actually litigated and determined in Case 1 3. issue was ESSENTIAL to the judgment in Case 1 = the finding on this issue is the basis for the judgment 4. Can only be used against someone who was a PARTY in case #1 OR in PRIVITY with them 5. MUTUALITY doctrine generally, only parties to Case 1 can assert preclusion

Answer 330

can only be used against somebody who was a PARTY to Case 1 or in PRIVITY with a party (rationale = DP) privity = that a party to Case 1 represented someone who was not a party to Case 1 example = class action, where Rep represents members, who are bound even though they were not parties

Answer 331

every court agrees that issue preclusion can be used by someone who was a PARTY to Case 1 (or represented by a party) key issue = whether it can be used by someone who was not a party to Case 1 (or represented by a party) ``` nonmutual issue preclusion = when someone who was not a party to Case 1 tries to use issue preclusion in Case 2 - comes up in 2 ways = 1. nonmutual defensive issue preclusion 2. nonmutual offensive issue preclusion ```

Answer 332

= D seeks to invoke issue preclusion to prevent P from establishing its claim (was not a party in earlier case) fed law + most states say it's okay as long as approved use where issue was fully and fairly litigated in case 1

Answer 333

= P seeks to invoke issue preclusion to establish facts to prove its claim (was not a party in earlier case) majority = can't use it recent trend and federal = allows non-mutual offensive as long as it’s NOT UNFAIR using 4 fairness factors

Answer 334

= must has confidence that issue was fairly determined in prior action UNFAIR IF 1. party did not have adequate incentive to litigate issue aggressively (like if the stakes were much lower than in later action) 2. result was somehow brought into question, like if inconsistent with findings in other actions on the same issue 3. losing party did not have a full procedural opportunity to litigate the issue in prior action 4. P had been waiting for another litigant to litigate a common issue, hoping to ride on party’s coattails if outcome is favorable or relitigate if it isn’t (such strategic behavior would promote inefficiency)

Answer 335

1. D’s action after denial of R.12 motion – must serve answer w/in 14 days of notice of denial 2. D has right to implead w/in 14 days of serving answer 3. Initial required disclosures must be made w/in 14 days of R.26(f) conference 4. TRO – effective 14 days & can be extended 14 days 5. Detailed discovery plan – must be presented to court no later than 14 days after R.26(f) conference 6. Jury Demand – must be made in writing no later than 14 days after service of last pleading addressing a jury-triable issue 7. Offer of Judgment – if D makes offer at least 14 days before trial & P declines (& P ultimately gets less favorable judgment at trial), P is liable to D for D’s costs incurred after offer was made 8. Interlocutory review (class action) – Court of Appeals has discretion to review grant/denial of class certification; must seek review w/in 14 days of order

Answer 336

1. D’s response – must file either answer or R.12 motion no later than 21 days after being served with process 2. P’s right to amend – P has right to amend complaint once no later than 21 days after D serves her first R.12 response (answer/motion) 3. D’s right to amend – D has right to amend answer once no later than 21 days of serving answer 4. Safe harbor for sanctions 5. P must respond to D’s counterclaim w/in 21 days of service of counterclaim 6. Discovery tools: although parties generally can’t send discovery requests until after R.26(f) conference, minor exception is they can serve requests to produce more than 21 days after service of process 7. Parties must meet and confer 21 days before scheduling order

Answer 337

1. TRO cannot exceed 28 days (may be considered preliminary injunction) 2. RJMOL – must move w/in 28 days after entry of judgment 3. Motion for new trial – must move w/in 28 days after judgment

Answer 338

1. Waiver of formal process within US (mailed by D w/in 30 days) 2. Removal – D must remove no more than 30 days of service of first paper showing case is removable 3. Remand – if P thinks removal was improper for a reason other than SMJ, must move to remand w/in 30 days after notice of removal was filed in federal court 4. In-state D rule – P still has to remove to remand w/in 30 days after filing notice of removal 5. Required pretrial disclosure must be made no later than 30 days before trial 6. Interrogatories – must respond to them w/in 30 days from service of interrogatories (plus extra 3 days if they were mailed) 7. Requests to produce – responding party must respond in writing w/in 30 days of service 8. Request for admission – responding party must respond in writing w/in 30 days of service 9. SJ – any party can move for SJ no later than 30 days after close of discovery 10. Motion for relief from order or judgment – must be made w/in 30 days after entry of judgment

Answer 339

waiver of formal process outside US (mailed by D w/in 60 days)

Answer 340

1. P must serve D w/in 90 days of filing complaint | 2. Relate back – (new D must have known of the case w/in 90 days of filing)

Answer 341

1. removal (D’s need not join all in same doc as long as all of them remove in a timely fashion) 2. intervention (application to intervene must be TIMELY

Answer 342

1. can challenge SMJ 2. P can make a motion for a voluntary dismissal (that is discretionary by the court) 3. party can make a motion for relief from order or judgment for a clerical error

Answer 343

1. D can raise a 12(b)(6) motion (failure to state a claim) | 2. D can raise a 12(b)(7) motion (failure to join an indispensable party)

Answer 344

when required disclosures for expert witnesses must be made

Answer 345

P has a right to take a voluntary dismissal

Answer 346

1. party can make a motion for relief from order or judgment for mistake, excusable neglect (including viable defense) 2. party can make a motion for relief from order or judgment for fraud, misrepresentation, or misconduct by opposing party 3. party can make a motion for relief from order or judgment for new evidence that could not have been discovered with due diligence for a new trial motion

Answer 347

party can make a motion for relief from order or judgment because judgment is void (ex: no SMJ)

Civpro Flashcards

(376 cards)