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Flashcards in Federal Civil Procedure Deck (318)

How do you determine whether you are in the right court?

  • Personal jurisdiction
  • Subject matter jurisdiction
  • Venue


What is the basic idea behind personal jurisdiction?

Whether the court has jurisdiction over the parties

i.e., can P sue D in this state?


What is the analysis for personal jurisdiction?

  1. Statutory analysis
    • Does the court's jurisdiction over the parties satisfy the state statute?

  2. Constitutional analysis
    • Does the court's jurisdiction over the parties satisfy the Constitution (i.e., Due Process)?


What is the Constitutional analysis for personal jurisdiction?

Personal jurisdiction is clearly constitutional if D is:

  • Domiciled in the forum state,
  • Consents to jurisdiction by the forum state,
  • Voluntarily present in the forum state when served with process

Otherwise, assess the following factors:

  • Contact between D and the forum state
  • Relatedness between D's contact and P's claim
  • Fairness


What is the "contact" analysis for personal jurisdiction?

  • Purposeful availment
    • Did D reach out to the forum state?
  • Foreseeability
    • Was it foreseeable that D could get sued in the forum state?


What is the "relatedness" analysis for personal jurisdiction?

  • Specific personal jurisdiction
    • Does P's claim arise from D's contact with the forum state?
  • General personal jurisdiction
    • Is D "at home" in the forum state?


Where is a human always "at home"?

Where he is domiciled


Where is a corporation always "at home"?

  1. Where incorporated, and
  2. Where it has its principal place of business


Where is a corporation's principal place of business?

Where the corporation's managers direct, coordinate, and control corporate activities (i.e., the "nerve center")

This is usually the headquarters


What is the fairness analysis for personal jurisdiction?

  • Does the forum state have specific personal jurisdiction?
    • If no, do not address fairness
    • If yes, consider:
      1. Burden on D and the witnesses
        • Can D show that the forum is so gravely inconvenient that it puts him at a severe disadvantage in the litigation?
          • Due process does not guarantee the most convenient forum
          • Relative wealth of the parties is not determinative
      2. Forum state's interest
        • Is P a citizen of the forum state?
          • If so, the forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters
      3. P's interest
        • Is P injured and therefore wants to sue at home?


What is the constitutional analysis for in rem and quasi in rem jurisdiction?

The same analysis that applies for personal jurisdiction


What is the basic idea behind subject matter jurisdiction?

Whether the court has jurisdiction over the case

i.e., can P sue D in this court?


When do state courts have subject matter jurisdiction?

Almost always

Limited exception:

  • Cases arising under a few federal laws must be brought in federal court
    • Patent infringement
    • Bankruptcy
    • Federal securities violations
    • Antitrust violations


When do federal courts have subject matter jurisdiction?

  • Diversity of citizenship (and alienage) cases
  • Federal question cases


What are the requirements for diversity of citizenship (and alienage) jurisdiction?

  • The case is either between:
    • Citizens of different states (diversity)
    • A citizen of a state and a citizen of a foreign country (alienage), AND
  • The amount in controversy exceeds $75,000


What is the complete diversity rule?

Diversity jurisdiction does not exist if any P is a citizen of the same state as any D


If an alien is admitted to the US for permanent residence (i.e., a so-called "green card" alien) and is domiciled in a US state, is he considered an alien or a citizen of the US state?

He is an alien, so litigation with him might invoke alienage, but not diversity jurisdiction

Note: There is a special rule that prohibits alienage when a "green card" alien is domiciled in the same US state as a litigant on the other side of the case. In these situations, subject matter jurisdiction is prohibited by statute


When a "green card" alien is domiciled in the same US state as a litigant on the other side of the case, is there alienage?

No. In these situations, subject matter jurisdiction is prohibited by statute. The parties will have to litigate in state court.


If a US citizen moves abroad and is domiciled in a foreign country, are they an alien? Are they a citizen of a US state?

No, they are not an alien, so there cannot be alienage.

No, they are not a citizen of a US state because they are not domiciled in a US state, so there cannot be diversity.

Litigation between this person and a citizen of a US state would have to take place in state court.


What is the US state of citizenship for a natural person who is a US citizen?

The US state where that person is domiciled.


  • Every human has a domicile
  • No human can have more than one domicile


How does a human establish a new domicile? What do courts look to in making this determination?

  1. Physical presence there, AND
  2. The intent to make that your permanent home
    • For intent, courts look to factors such as:
      • Taking a job
      • Buying a house
      • Joining civic organizations
      • Registering to vote
      • Qualifying for in-state tuition


When should the test for diversity be applied?

When the case is filed.

So, if a party moves to the same state as his opponent after filing the case, diversity is not destroyed.


What is the citizenship of an unincorporated association (e.g., partnership, LLC, etc.)?

The citizenship of all of its members (including both general and limited partners)


What is the citizenship of a decedent, minor, or incompetent?

Wherever they are domiciled.

They must sue or be sued through a representative, but the representative's citizenship is irrelevant.


What is the amount in controversy requirement?

The claim must exceed $75,000.


How are legal costs and interest treated with respect to the amount in controversy requirement?

You cannot count legal costs or interest on the claim.

But if a party is suing to recover interest as​ the claim, then you do include it.


If the plaintiff claims more than $75,000, is that automatically the amount in controversy?

Yes, unless it is clear to a legal certainty that P cannot recover more than $75,000

E.g., $50K of P's $100K claim is for punitive damages, and the relevant jurisdiction does not allow punitive damages in the case.


If P sues for more than $75,000 but only wins a judgment of $10,000, is diversity of citizenship (or alienage) jurisdiction destroyed?

No. The amount that P recovers is irrelevant.

But, in this situation, P will have to pay for his own and D's costs even though P won. Generally, the winner recovers costs from the loser.


What do "costs" include?

Basic expenses of litigation, such as:

  • Filing fees
  • Discovery fees

"Costs" DO NOT include attorney's fees. Each side pays its own attorney's fees.


How does aggregation work?

Aggregate the claims of one P v. one D

  • Factually unrelated claims can be aggregated
  • There is no limit on the number of claims that can be aggregated
  • For joint claims (i.e., claims against joint Ds), use the total value of the claim
  • For joint claims, the total number of parties is irrelevant

DO NOT aggregate the claims of two separate Ps


What is the test to determine whether a claim for equitable relief satisfies the amount in controversy requirement for diversity jurisdiction?

  • Plaintiff's viewpoint
    • Does the alleged wrongdoing decrease the value of P's property by more than $75,000?
  • Defendant's viewpoint
    • Would it cost D more than $75,000 to comply with the requested relief?


What kind of cases will federal courts refuse to hear even if the requirements for diversity or alienage jurisdiction are met?

  • Divorce
  • Alimony
  • Child custody
  • Estate probate

BUT NOT domestic abuse


What are the requirements for federal question jurisdiction?

The claim in P's complaint "arises under" federal law

E.g., federal constitution, federal legislation, etc.


What is the "well pleaded complaint" rule?

It is not enough that some federal issue is raised by P's complaint. The claim itself must "arise under" federal law.

Look at the complaint and ignore other material P alleged.

Ask: Is P enforcing a federal right?


If P sues D, and D argues that a federal statute protects him agianst the claim, does a federal court have jurisdiction?

No. P (not D) must be enforcing a federal right in order for federal question jurisdiction to apply. In this situation, D (not P) is enforcing a federal right.


Unless the exam question says the claim is based upon a federal law, are the following claims federal?

  • Tort
  • Contract
  • Property

No. These are state common law claims, unless the question says otherwise.


Once a case is properly in federal court, what additional claims can be asserted?

Claims that invoke:

  • Diversity (and alienage) jurisdiction
  • Federal question jurisdiction
  • Supplemental jurisdiction


What is the test for supplemental jurisdiction?

The additional claim:

  • Must arise from the same transaction or occurence as the underlying case, and
  • Must not fall within the supplemental jurisdiction limitation, and

  • The federal court does not exercise its discretion to decline jurisdiction



What is the supplemental jurisdiction limitation?

An additional claim cannot invoke supplemental jurisdiction if:

  • Asserted by P,
  • In an underlying diversity of citizenship (not federal question) case, AND
  • Asserted against a citizen of the same state as P


Even if the requirements for supplemental jurisdiction are met, can a federal court decline jurisdiction?

Yes. The court has discretion to decline jurisdiction if:

  • The state law claim is complex, or
  • State law issues would predominate in the case, or
  • The underlying claim is dismissed early in the case


What is "removal"?

Removal transfers the case from a state trial court to a federal trial court


What happens if removal was improper?

The federal court can remand the case back to the state court


Who can remove a case to federal court?

Only the defendant.

The plaintiff can never remove, even if he is a defendant on a counterclaim.


When can a party remove a case to federal court?

Only within 30 days of service (not filing) of the first paper that shows the case is removable.

Usually that means within 30 days of service of process.


Who must join in the removal of a case to federal court?

ALL defendants who have been served with process.

But not those who haven't been served.


What cases can be removed to federal court?

Any case that meets the requirements for diversity (or alienage) or federal question jurisdiction.

BUT, if removal is based on diversity of citizenship jurisdiction,

  • No removal if any D is a citizen of the forum (in-state D)
  • No removal more than one year after the case was filed in state court


When a case is not removable to federal court because of an in-state D, can it ever become removable?

Yes. If the claim against the in-state D is dropped, the case becomes removable.

The 30 day period for removal begins on the date this claim is dropped (i.e., the first document that made the case removable)


When a case is not removable to federal court because of an in-state D, and the claim against the in-state D is dropped more than a year after the case is filed, does the case become removable?

No. A case cannot be removed more than a year after it was filed in state court.

Unless the judge finds that P acted in bad faith by originally joining the in-state D to prevent removal.


When a case is removed to federal court, which federal court is it removed to?

The federal district "embracing" the state court where the case was filed.


How does a party remove a case to federal court?

  1. File a notice of removal in federal court that:
    • States the grounds for removal (i.e., subject matter jurisdiction based on diversity or federal question)
    • Attaches all documents that were served on the moving party in the state action
  2. Serve a copy of the notice of removal on adverse parties
  3. File a copy of the notice of removal in state court


In response to a notice of removal, what should the plaintiff do if he thinks the case should not be removed?

Move to remand to state court


When must a plaintiff move to remand a case to state court?

  • If based on a lack of subject matter jurisdiction:
    • Anytime
  • Otherwise (e.g., in-state D or necessary papers not attached to notice of removal)
    • Within 30 days after the notice of removal was filed


What law should the judge apply in a diversity jurisdiction case in federal court?

The federal judge should follow the Eerie doctrine:

  • Is there a federal law on point that directly conflicts with state law?
    • If yes:
      • Apply federal law if it is valid (based on the supremacy clause)
    • If no:
      • Apply federal law for "procedural issues"
      • Apply state law for "substantive issues"


When is a federal law valid?

When it does not modify substantive rights.

This is probably met if it is "arguably procedural."

No FRCP has ever been held invalid.


What issues are "clearly substantive"?

  1. Elements of a claim or defense
  2. Statute of limitations
  3. Rules for tolling statutes of limitations
  4. Conflict (or choice) of law rules

So when these issues arise in a diversity jurisdiction case, the federal court should apply state law.


When an issue in a diveristy jurisdiction case is not "clearly substantive," how does the federal judge determine whether the issue is substantive or procedural?

Weigh the following factors:

  1. Outcome determinative
    • If either applying or ignoring the state rule would affect the outcome of the case, it is probably a substantive issue, and state law should apply
  2. Balance of interests
    • If either the federal or state system has a strong interest in having its rule applied, that rule should apply
  3. Avoid forum shopping
    • If ignoring the state law on this issue will cause parties to flock to the federal courts, state law should apply


Is there a general federal common law?

No. The general common law of contracts, torts, and property is state law, and federal court should apply that state substantive law.


When can federal courts create their own common law?

  • Congress passes a statute that creates a new claim but fails to address certain things (i.e., leaves gaps)
  • International relations
  • Admiralty
  • Disputes between states
  • The right to sue a federal officer violating one's federal rights


What is the basic idea behind venue?

Venue tells us which federal district a plaintiff can sue in

Cf. Subject matter jurisdiction tells us that the plaintiff's case can be heard in federal court, whereas venue tells us which particular federal court that case can be heard in


What are a plaintiff's choices for venue?

P may lay venue in any district where:

  • ALL defendants reside (subject to the special venue rule)
  • A substantial part of the claim arose

Note: when a state court is removed to federal court, these choices do not apply because in that situation, the venue for the removed case has to be the district that embraced the state court for the case


What is the special venue rule?

If all Ds reside in different districts of the same state, P can lay venue in the district in which ANY D resides.

E.g., If D-1 resides in N.D.N.Y. and D-2 resides in W.D.N.Y., venue can be laid in either N.D.N.Y. or W.D.N.Y.


Where do defendants "reside" for venue purposes?

  • If D is a human:
    • The district where domiciled
  • If D is a business:
    • ALL districts where subject to personal jurisdiction


Where can a federal district court transfer a case?

Only to a district where the case could have been filed

The "transferee" must:

  1. Be a proper venue, and
  2. Have personal jurisdiction over D


When can a defendant waive the requirements for a transfer of venue?

Only when the transferee is proper

In other words:

  • The defendant can waive the personal jurisdiction requirement (in fact, this amounts to consent which provides personal jurisdiction)
  • The defendant cannot waive the proper venue requirement


When can a plaintiff waive the requirements for a transfer of venue?

Anytime, but it is unlikely that P will do so.

In other words, if all parties consent to the transfer, the case can be transferred to any district, even if an improper venue


What do the 2 venue transfer statutes say?

  1. Transferor is a proper venue
    • The transferor can order transfer based on:
      • Convenience of the parties,
      • Convenience of the witnesses,
      • Interests of justice
  2. Transferor is an improper venue
    • The transferor may:
      • Transfer in the interests of justice, or
      • Dismiss the case


What factors does the court look to in deciding whether to transfer venue?

  1. The existence of a valid forum selection clause
    • ​​If the parties entered into a contract saying the dispute would be litigated in a particular district, the court will almost always transfer to that district
  2. Public and private factors showing that the transferee is the center of gravity
    • Public factors:
      • What law applies
      • What community should be burdened with jury service
      • The desire to keep a local controversy in the local court
    • Private factors:
      • Convenience
        • E.g., where the evidence and witnesses are


What is "forum non conveniens"?

The court's discretionary power not to transfer the case to a more convenience court, but rather to:

  • Dismiss, or
  • Stay the case


What does it mean to stay the case?

To hold in abeyance (i.e., nothing happens in the case, it just sits there)


Under forum non conveniens, why does a court dismiss or stay?

Because the more convenient court is in a different judicial system (e.g., a foreign country), so transfer is impossible


What factors does a court consider when making a forum non conveniens decision?

  • Is P a resident of the present forum?
    • If yes, FNC dismissal is almost never granted
    • If no, the court considers the same factors as it would for a transfer decision, and
      • Whether the other court is "available" and "adequate"


If a foreign court does not permit trial by jury or recovery for emotional distress, will it be deemed inadequate for purposes of a forum non conveniens decision?

No. A court is adequate if the plaintiff will get his day in court.


What is the basic idea behind service of process?

D is entitled to know that he has been sued.


What does service of process consist of?

Together, the following two documents are called "process"?

  1. A summons (i.e., formal court notice of the suit and the time for response)
  2. A copy of the complaint



Who can serve process?

Any nonparty who is 18 years old


Does the process server have to be appointed by a court?



How is process served?

  1. Personal service
    • Process is given to D personally, ANYWHERE
  2. Substituted service
    • Process is left:
      • At D's usual abode (e.g., summer home in the summer is fine)
      • With someone of suitable age and discretion who resides there (e.g., not a babysitter)
  3. Service on D's agent
  4. Other methods (e.g., mail) permitted by the law of the state where:
    • The federal court sits
    • Service is made


In federal court, can the plaintiff use substituted or agent service even if personal service would be possible?

Yes, they are all alternatives


How does waiver by mail work for service of process?

  1. P mails to D:
    • A copy of the complaint
    • Two copies of a waiver form
    • With a prepaid means of returning the form to P
  2. D executes and returns the waiver form within 30 days
  3. P files the waiver form with the court, and it is effective


If D waives formal process, does he waive any defense (e.g., lack of personal jurisdiction)?



What happens if D does not return the form for waiver of service of process?

If D does not have good cause for failing to return the form, he must pay for the cost of service


What does the process server have to do after serving process?

File a report with the court detailing how service was made.

If the server was a civilian, the report is by affidavit (i.e., a sworn statement under oath)


What happens if a process server fails to file a report detailing how service was made?

Nothing - the service is still valid.

P will just have to prove that service was made.


How are documents other than process served?

They still get served, but it does not have to be done formally.

These documents (e.g., answer, pleadings, motions, discovery) are delivered or mailed to either:

  • The party's attorney
  • The party (if pro se)


What is the effect of mailing rather than personally delivering documents that require a response within a particular time period (e.g., interrogatories)?

If mailed, the responding party gets an extra 3 days


Can documents be served via e-mail?

Yes, if the receiving party agrees


What are the "pleadings"?

  1. Complaint
  2. Response
    • Can be in the form of a motion or answer, but only the answer is a pleading
  3. Counterclaim
  4. Crossclaim
  5. Additional claims
  6. Amended pleadings
  7. Supplemental pleadings


What is the complaint and what are its requirements?

Filing this commences an action


  1. Statement of grounds of subject matter jurisdiction,
  2. Short and plain statement of the claim, showing that P is entitled to relief,
  3. Demand for relief sought (e.g., damages, injunction, declaratory judgment)


What is the standard for stating the claim in a complaint?

P must plead facts supporting a plausible claim

To determine plausibility, the judge uses his own "judicial experience and common sense"


Does P have to allege the grounds for personal jurisdiction or venue in his complaint?



What matters must be pleaded with more detail?

The following matters must be pleaded with particularity or specificity:

  • Fraud (circumstances of the fraud must be in detail)
  • Mistake
  • Special damages


How and when should D respond to a complaint, and what FRCP requires this?

FRCP 12 requires D to respond by either:

  1. Motion, or
  2. Answer

Within 21 days after service of process, or

If D waived service, within 60 days from when P mailed him the waiver form


Are motions pleadings?

No. They are requests for a court order.


What are the motions regarding issues of form?

  • Motion for a more definite statement
    • The pleading is so vague that D can't frame a response (this is rare)
  • Motion to strike
    • Aimed at immaterial or scandalous things


What are the FRCP 12(b) defense motions, and where can they be included?

The following 12(b) motions can either be included in:

  • motion to dismiss, or
  • The answer
  1. Lack of subject matter jurisdiction
  2. Lack of personal jurisdiction
  3. Improper venue
  4. Improper process (i.e., problem with papers)
  5. Improper service (i.e., problem with procedure)
  6. Failure to state a claim
  7. Failure to join an indispensible party


Which 12(b) motions are waivable, and what does that mean?

The following motions must be included in the first FRCP 12 response (i.e., motion or answer). Otherwise they are waived.

  • 12(b)(2)
  • 12(b)(3)
  • 12(b)(4)
  • 12(b)(5)



If D waives the improper venue motion - 12(b)(3) - or the lack of personal jurisdiction motion - 12(b)(2) - can he still move to transfer the case to a proper venue that has personal jurisdiction over him?

Yes. The court has discretion to transfer


When can the lack of subject matter jurisdiction motion - 12(b)(1) - be raised?

Anytime, even after trial


When can the failure to state a claim motion - 12(b)(6) - or the failure to join an indispensible party motion - 12(b)(7) - be raised?

Anytime throughout trial, but not after trial


What is included in the answer?

  • Response to allegations in the complaint
    • Admit
    • Deny
    • State lack of sufficient information to admit or deny
  • Affirmative defenses


When can a defendant NOT state in his answer a lack of sufficient information to admit or deny an allegation?

When the answer to the allegation is within D's control.

D has a duty to investigate things within his control 


What happens if, in his answer, D responds to an allegation by saying something other than the following:

  • Admit
  • Deny
  • Lack of sufficient information to admit or deny

D has effectively admitted to the allegation.

"If you do not deny you certainly will fry."

BUT D is never deemed to admit damages


What are the classic affirmative defenses to be included in a defendant's answer?

  • Statute of limitations
  • Statute of frauds
  • Res judicata
  • Self-defense


What if D does not plead an affirmative defense in his answer?

D waives the affirmative defense and cannot raise it at trial.


What is a counterclaim?

A claim against an opposing party


How would D assert a counterclaim? How would P respond?

  • D would assert a counterclaim in his answer
  • P would respond under FRCP 12:
    • Within 21 days by either:
      • Motion, or
      • Answer


What are the two types of counterclaims?

  1. Compulsory counterclaim
    • This arises from the same transaction or occurence as P's claim
    • Unless D has already filed the claim in another case, he must file it in the pending case or it is waived
  2. Permissive counterclaim
    1. This does not arise from the same transaction or occurence as P's claim
    2. D may file this claim in a separate case


Everytime a federal case involves a counterclaim, crossclaim, or additional claim, what must be assessed?

Whether the claim satisfies subject matter jurisdiction:

  • Diversity
  • Federal question
  • Supplemental


What is a crossclaim?

A claim against a co-party


What is the requirement for a crossclaim?

It MUST arise from the same transaction or occurence as the underlying action


Is a crossclaim compulsory?

No. It may be asserted as a crossclaim or brought in a separate suit.


If D-1 files a crossclaim against D-2 and then D-2 wants to file a claim against D-1, what would D-2's claim be?

A counterclaim because it is against an opposing party.

Once someone asserts a claim against you, you are opposing parties.


When can additional claims be joined to a counterclaim or crossclaim?

Anytime, so long as they satisfy subject matter jurisdiction (i.e., diversity, federal question, or supplemental)

Additional claims can be totally unrelated to the other claims.


When does P have a right to amend?

Once within 21 days after D serves his first FRCP 12 response.

Otherwise, he must seek leave of the court to amend.


When does D have a right to amend?

Once within 21 days of serving his answer.

Otherwise, he must seek leave of the court to amend.


What should a party do if he wants to amend but the 21-day right to amend period has ended?

Seek leave of court. It will be granted if justice so requires, based on the following factors:

  • Delay
  • Prejudice
  • Futility of amendment (waste of time)


What is a variance? When does it arise?

A variance is where evidence AT TRIAL does not match what was pleaded


If there is a variance, when can P move to amend his complaint to conform to the evidence?

When can P not move to amend?

If D does not object to the variance, P can move to amend his complaint to conform the evidence.

If D does object to the variance, the evidence at trial that does not conform to the pleadings is inadmissible because it is at variance with the pleadings.


When can P amend his complaint to join a new claim even if the statute of limitations has run?

If the amended pleading relates back.

Amended pleadings to join a new claim relate back if:

  • They concern the same conduct, transaction, or occurence as the original pleading.

Relation back means you treat the amended pleading as though it was filed when the original pleading was filed.

Note: In order to amend, P still needs to make sure that the amendment either:

  • Falls within the 21-day period for amendment, or
  • The court grants leave to amend


When can P amend his complaint to change a defendant even if the statute of limitations has run?

If the amended pleading relates back.

Amended pleadings to change a defendant relate back if:

  • They concern the same conduct, transaction, or occurence as the original pleading,
  • The new party knew of this case within 120 days of its filing, and
  • The new party knew that, but for a mistake, he would have been named originally

IN OTHER WORDS, P sued the wrong D first, but the right D knew about it

Note: In order to amend, P still needs to make sure that the amendment either:

  • Falls within the 21-day period for amendment, or
  • The court grants leave to amend


What are supplemental pleadings?

These set forth things that happened after the pleading was filed.

Note: amended pleadings are about things that happened before the pleading was filed but were not asserted until later


When will a court allow supplemental pleadings?

This is discretionary, but the court will often do so unless it will cause delay or prejudice


What does FRCP 11 apply to? What does it say?

FRCP 11 applies to all documents except discovery

FRCP 11 says:

  • When a lawyer or pro se party signs documents, he certifies that to the best of his knowledge and belief, after reasonable inquiry:
    • The paper is not for an improper purpose
    • The legal contentions are warranted by law (or nonfrivolous argument for law change)
    • The factual contentions and denials of factual contentions have evidentiary support

This is a continuing certification - you make it everytime you advocate a position taken in a document


If there is a FRCP 11 violation, against whom can sanctions be ordered?

  • Party
  • Attorney
  • Firm


What is the purpose of FRCP 11?

To deter, not punish

Before imposing a sanction on a person,  he gets a chance to be heard


If another party in a case violates FRCP 11, what should you do?

"Serve, but don't file"

  1. Serve a motion for sanctions on the other parties, but do not file it
    • The violating party has a safe harbor of 21 days to fix the problem and avoid sanctions
  2. If they do not fix it, then file the motion for sanctions



What are the required disclosures in discovery?

The following disclosures must be produced even though no one asks for them:

  1. Initial disclosures
  2. Expert witnesses
  3. Pretrial required disclosure


What are initial disclosures in discovery?

  1. Identifies of persons who have discoverable information that you (the disclosing party) may use to support your claims and defense
    • Name
    • Telephone number
    • Subjects on which they have information
  2. Documents and things that you may use to support your claims or defenses
    • You may produce:
      • Copies of these things, or
      • Descriptions of these things
  3. Computation of monetary relief and documents/ESI supporting it
    • This is required whenever someone claims monetary relief
  4. Insurance coverage
    • ​​D has to disclose any insurance that might cover all or part of the judgment in the case



What happens if a party fails to disclose something that he was required to disclose in discovery?

The party cannot use that material in the case,

UNLESS the failure to identify was:

  • Substantially justified, or
  • Harmless


Does a lawyer have to identify as an initial disclosure things that he knows about but does not have?

No. You only have to disclose material in your custody or control


As an initial disclosure, does D have to disclose insurance coverage when it will not be admissible at trial?

Yes. Discoverable is broader than admissible


When does each party have to identify their expert witnesses? Which expert witnesses need to be identified?

What needs to be identified about the expert witnesses?

Expert witnesses must be identified at some point after the initial disclosures, when directed by the court

Any expert witness "who may be used at trial" must be identified

But if the expert will not be called to testify, they do not need to be identified - this is a consulting expert

The disclosure shoudl include:

  • The identity of the expert witness
  • The written report of the expert witness, which must include:
    • Opinions the expert will express
    • Bases for the opinions
    • Facts used to form the opinions
    • The expert's qualifications
    • How much the expert is paid


After an expert witness is identified, can a party depose the expert? If so, how?

Yes, by doing the following:

  • Issuing a subpoena to compel the expert's attendance
  • Paying the expert a reasonable fee per hour (which the court can set if necessary)


What is an expert witness?

Someone who, because of special skill or training:

  • May give opinion testimony, and
  • Is hired to render an opinion for this case

Note: Others may testify who have expertise, but they are not expert witnesses under this rule because they are not hired to render an opinion in the case

  • E.g., a doctor who developed opinions to treat the plaintiff, not for purposes of the litigation


What is the "pretrial required disclosure"?

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

  • Identity of witnesses to testify live or by deposition
  • Documents, ESI, and other things to be introduced


Assuming no court order or stipulation provides otherwise, when can a party first request discovery from other parties?

After the FRCP 26(f) conference

The FRCP 26(f) conference is when the parties "meet and confer" to discuss the following, and then present a detailed discovery plan to the court:

  • Required initial disclosures
  • Claims
  • Defenses
  • Settlement
  • Issues regarding preservation of discoverable information



Which tools can be used to get information from non-parties?

  • Depositions
    • But you should subpoena the non-party to compel attendance
  • Requests to produce
    • But you should subpoena the non-party to compel production
  • Medical exam
    • But only if the non-party is in the custody or legal control of a party


What is a deposition?

Person gives live testimony under oath in response to questions by counsel or pro se parties

The questions can be oral or written. If written, the court reporter reads them.

The deposition is recorded by:

  • Sound
  • Video
  • Stenographically


Do you have to subpoena a party for a deposition?

No. You just serve notice of the deposition (i.e., you "notice" the deposition)


How do you depose a non-party?

You subpoena the non-party to compel attendance.


What is a subpoena "duces tecum"?

It requires a deponent to bring requested materials with them to a deposition.


Unless a non-party agrees, what is the farthest that the non-party can be required to travel for a deposition?

100 miles from where the non-party:

  • Resides, or
  • Is employed


If a party wants to depose an employee of a company but does not know the identity of the particular employee, how can they depose the employee?

The party can either:

  • Request identification of the employee in interrogatories to the company and then depose him, or
  • Notice the deposition of the company and describe the matters for examination. Then the company has to send the right person to address those matters (i.e., the particular employee)


What are the limits on depositions?

  • No more than 10 depositions
  • No deposing the same person twice without:
    • Court approval
    • Stipulation
  • No depositions longer than 1 day of 7 hours without:
    • Court approval
    • Stipulation


How would you use a deposition at trial?

  • Any purpose if the deponent is an adverse party
  • Any purpose if the deponent is unavailable, unless:
    • The deponent's absence was caused by the party using the deposition
  • Impeach the deponent


What are interrogatories?

Written questions to be answered:

  • In writing
  • Under oath


To whom can you send interrogatories?

Parties only


How long does a party have to respond to an interrogatory with answers or objections?

30 days from service


Can a party respond to an interrogatory by saying they don't know the answer?

Not unless the information is not reasonably available.

The party must respond based on information reasonably available to them.


How many interrogatories can be sent to a party?

25 including subparts (so no more than 25 actual questions) unless:

  • Court order
  • Stipulation


What should a party do if the answer to an interrogatory can be found in business records, but it would be burdensome to find the answers?

The resonding party can allow the requesting party to have access to the records


What are the limits to using interrogatories at trial?

You cannot use your own answers to interrogatories

Others are okay per the FRE


What are requests to produce?

They request that someone either:

  • Make available for review and copying documents or things (including ESI)
  • Permit you to enter designated property to inspect, measure, etc.


In what form should ESI be produced?

The requesting party specifies the form.

The responding party can object.


What is unique about a medical exam?

You must get a court order in order, which requires you to show the following:

  • The person’s health is an actual controversy
  • Good cause


Who can be ordered to undergo a medical exam?

  • A party
  • Someone in a party’s custody or legal control (e.g., the child of a parent – this is narrow)


Who chooses the licensed person to perform a medical exam?

The party seeking the court order for the medical exam chooses the licensed medical examiner


If someone is ordered to undergo a medical exam, can they receive the exam? If so, what are the implications?

Yes. If you are examined you can request a copy of your exam from the party who sought it.

If you request and obtain your medical exam, you waive any privilege you may have concerning testimony or other evidence about all examinations of that medical condition. So, you would have to produce reports of your own doctors concerning the medical condition.


What is a request for admission? On whom may it be served?

it is a written request that someone admit things.

A request for admission can only be served on parties


If a party fails to deny specifically or object to a particular request for admission, what happens?

The responding party is deemed to have admitted that fact.


Can a party respond to a request for admission by saying they do not know the answer?

Only if they:

  • Made reasonable inquiry and cannot find enough to admit or deny the fact, and
  • They state this in their response


What is a common use of requests for admission?

To authenticate documents (i.e., "admit that this is the contract")


What is required of every discovery request and response?

It is signed by counsel certifying that:

  • It is warranted
  • It is not interposed for improper purpose
  • It is not unduly burdensome


What do you do if circumstances change and your discovery response (i.e., required disclosure, interrogatory, request for production, or request for admission) becomes incomplete or incorrect?

You have a duty to supplement your response, even though nobody asks for it


What can you discover (i.e., what is the scope of discovery)?

Anything relevant to a claim or defense

Relevant includes things that are "reasonably calculated to lead to the discovery of admissible evidence"

This is broader than admissible


Does a party have to disclose something that is harmful to them?

Yes. It need not be disclosed in required disclosures, but may well be discoverable using the regular discovery tools


When would evidence of D's net worth be relevant, and thus discoverable?

If P sued to punitive damages because it P needs to know how much will actually punish D

But not just compensatory damages because it is irrelevant to how much harm was inflicted upon P


What is the doctrine of proportionality?

The court has authority to limit discovery, even if the request is relevant, if it is:

  • Cumulative, or
  • The burden outweighs the importance of the issue


If material that is requested in discovery can only be provided at an enormous cost, what will happen?

  • The court can limit the request under the doctrine of proportionality
  • The court can order production, but allocate the expense between the parties


What if information requested in discovery is privileged?

The responding party can object on the basis of evidentiary privilege.


What is work product? Is it discoverable?

Material prepared in anticipation of litigation - i.e., trial preparation materials

Work product is generally protected from discovery


Does materials have to be generated by a lawyer to count as work product?

No, it does not have to be attorney work product.

Work product can be generated by:

  • An attorney
  • A party
  • A representative of a party


What is qualified work product?

Material that would otherwise be work product but is discoverable because the requesting party can show:

  • Substantial need, and
  • That it is not otherwise available

E.g., a witness statement included in a PI's report prepared in anticipation of litigation


What is absolute work product?

  • Mental impressions
  • Opinions
  • Conclusions
  • Legal theories


P sues D regarding an auto collision between them. D asks a PI to find the identities of the eyewitnesses to the wreck. Doing so costs thousands of dollars in investigation fees. P serves an interrogatory on D asking for the names of all persons with information relevant to the case. Can D withold the identity of the witnesses based on work product?

No. The identity of people with discoverable information is discoverable.


Can a party's own statement (e.g., a recording after a car wreck) be witheld based on work product?

No. A party is entitled to request and obtain his own statement.


What do you need to do if you withold discovery or seek a protective order based on privilege or work product?

Claim the protection expressly and describe the materials in detail. Do this in a privilege log that lists the protected materials by:

  • Date
  • Author
  • Recipient
  • Privilege or protection claimed

This must be in enough detail to allow the judge to determine whether the material is protected



What should you do if you inadvertently product privileged or protected material?

Notify the other party promptly.

The other party must return, sequester, or destroy the material pending decision by the court about whether there has been a waiver


What are the three ways that courts get involved in discovery disputes?

  1. Protective order
  2. Ruling on a partial response to a discovery request
    • E.g., responding party answers some questions but objects to others and the judge decides whether the objections were legitimate or whether to impose sanctions
  3. Ruling on no response to a discovery request
    • E.g., judge decides whether to impose sanctions based on the responding party's complete failure to:
      • Attend a deposition
      • Respond to interrogatories
      • Respond to requests for production


When can a party get a protective order?

A party can get a protective order when she thinks a discovery request:

  • Subjects her to annoyance
  • Subjects her to embarrasment
  • Subjects her to undue burden
  • Subjects her to undue expense
  • Is cumulative
  • Is not proportional to the case


What should a party do to get a protective order?

Certify that she tried in good faith to deal with the request without court involvement - i.e., that she asked the other side to "meet and conver"


What can a court do if it agrees with a request for a protective order?

  • Deny discovery
  • Limit discovery
    • E.g., rule that a trade secret only be used in litigation and not be exploited in the marketplace
  • Permit discovery on certain terms


What does a party do if it wants the court to impose sanctions based on a party's partial response to a discovery request?

Two steps:

  1. Move for an order compelling the party to answer the unanswered questions, plus costs (including attorney's fees) of bringing the motion
  2. If the party violates the order compelling him to answer, ask the court to impose RAMBO sanctions plus costs (i.e., attorney's fees and costs of bringing the motion)
    • The court could also hold the party in contempt for violating a court order (unless it is based on a refusal to submit to a medical exam - you cannot be held in contempt for that)


What does a party do if it wants the court to impose sanctions based on a party's complete failure to respond to a discovery request?

One step (no need for an order to compel):

  • Ask the court to impose RAMBO sanctions plus costs (i.e., attorney's fees and costs of bringing the motion)

    The court could also hold the party in contempt for violating a court order (unless it is based on a refusal to submit to a medical exam - you cannot be held in contempt for that)


What are the court's options for so-called RAMBO sanctions?

  • Establishment order (i.e., establishes facts as true)
  • Strike pleadings of the disobedient party (as to issues regarding the discovery)
  • Disallow evidence from the disobedient party (as to issues regarding the discovery)
  • Dismiss P's case (if bad faith is shown)
    • Rare
  • Enter default judgment against D (if bad faith is shown)
    • Rare


If a party fails to produce ESI, when will the court not impose sanctions?

If the failure is because the information was lost in the good faith, routine operation of an electronic information system.

In these situations, the court will only impose sanctions in exceptional circumstances


When can:

  • Multiple parties sue together as co-plaintiffs?
  • One party sue multiple parties as co-defendants?

When the claims:

  • Arise from the same transaction or occurence, AND
  • Raise at least one common question, AND
  • The case satisfies subject matter jurisdiction


Why would a court force a non-party into the case?

Because the non-party is necessary (i.e., required)


Who is a necessary party?

An absentee who meets ANY of the following tests:

  • Without the absentee, the court cannot accord complete relief among existing parties
  • The absentee's interest may be harmed if he is not joined
  • D's interest may be harmed (i.e., he may be subject to a risk of multiple obligations) if the absentee is not joined


Are joint tortfeasors necessary?



If a party is necessary, is the party automatically joined?

No. The party's joinder must be feasible.

Joinder is feasible if:

  1. The court has personal jurisdiction over him, and
  2. Joinder will not destroy subject matter jurisdiction


What happens if joinder is feasible?

The court orders joinder


What happens if joinder is not feasible?

The court must either:

  1. Proceed without the absentee, or
  2. Dismiss the entire case


How does the court decide what to do when joinder is not feasible?

It looks at the following factors:

  • Is there an alternative forum available (e.g., state court)?
  • What is the actual likelihood of harm to the absentee (e.g., maybe the claim isn't likely to win anyway)?
  • Can the court shape relief to avoid harm to the absentee?


What happens if the court decides to dismiss rather than proceed without an absentee?

The absentee is deemed an indispensible party


What is the difference between claims staring with a "C" (e.g., counterclaims, crossclaims) and claims starting with an "I" (e.g., impleader, intervention)?

"C" claims are between existing parties

"I" claims involve someone new joining the case


What is an impleader?

A new party that D brings into the case (i.e., a third-party defendant - TPD)


If you have an impleader claim, do you have to assert it in this case?

No. It is never compulsory.

The only compulsory claim is the compulsory counterclaim.


What is an impleader claim usually for?

  • Indemnity (i.e., to have the impleader cover the full claim)
  • Contribution (i.e., to have the impleader cover a pro-rata portion of the claim)


If D claims that someone other than himself is responsible for the claim, can he implead that person?

No. In this situation D is not trying to deflect his own liability. He is not liable at all.


What are the steps for impleading a third-party defendant, and when can the defendant do this?

D must either take the following steps within 14 days of serving his answer or get court permission:

  • D files a third-party complaint naming the third-party defendant, and
  • D serves process on the third-party defendant
    • So, the court must have personal jurisdiction over the third-party defendant


After the third-party defendant is joined, can P assert a claim against the third-party defendant?

Yes, but only if the claim arises from the same transaction or occurence as the underlying case


After the third-party defendant is joined, can the third-party defendant assert a claim against P?

Yes, but only if the claim arises from the same transaction or occurence as the underlying case


If D impleads a party from that same state as the P in a diversity jurisdiction case, does the court have subject matter jurisdiction?

Yes. It does not matter that P and the third-party defendant are from the same state. P's citizenship is irrelevant to the impleader claim because he is not party to the impleader claim.


What is intervention?

When a non-party brings herself into the case, either as a P (to assert a claim) or as a D (to defend a claim)

Application to intervene must be timely


When can a party intervene?

When thay have intervention of right.

  • This is when the absentee's interest may be harmed if she is not joined and adequately represented now.
  • This is the same as the second test for whether a party is necessary
  • So, if a party is necessary based on the fact that her interest may be harmed, she would also have a right to intervene

When they have permissive intervention

  • This is up to the court's discretion
  • The absentee's claim or defense must have at least one common question with the pending case
  • This is usually okay unless intervention will cause delay or prejudice

Note: the court must have subject matter jurisdiction over the intervenor's claim


Who sues in a class action?

A representative sues on behalf of a group


What are the requirements for a class action?

The representative must demonstrative all of the following:

  • Numerosity
    • There are too many class members for joinder (no magic number)
  • Commonality
    • There is some issue in common to all class members, so resolution of that issue will generat eanswers for everybody in one stroke
  • Typicality
    • The class representative's claims are typical of those of the class
  • Representative adequate
    • The class representative will fairly and adequately represent the class


What are the steps for initiating a class action?

  1. Demonstrate the four requirements for a class action
  2. Fit the case within one of the three types of class actions
  3. Get the court to certify the class


What are the three types of class actions?

  1. Prejudice
    • Class treatment is necessary to avoid harm (prejudice) either to the class members or to the non-class party
      • E.g., multiple claims to a limited fund of money
  2. Injunction or declaratory judgment
    • The class seeks and injunction or declaratory judgment because D treated the class alike
      • E.g., employment discrimination
  3. Damages
    • Two requirements:
      1. Common questions predominate over individual question, AND
      2. Class action is the superior method to handle the dispute
    • E.g., mass tort case


What must a court do if it certifies the class action?

What additional step is required in a damages class action?

  1. Define the class and the class claims, issues, and defenses
  2. Appoint class counsel

In a damages class action, the court must notify all reasonably identifiable class members that they are in a class and tell them:

  • They can opt out
  • They will be bound by the judgment if they don't opt out
  • They can enter a separate appearance through counsel


Who is bound by the judgment in a class action

All members, except for members who opt out of the class in a damages class action


Can the parties settle or dismiss a class action?

Only with court approval


In a diversity of citizenship class action, who is considered for purposes of citizenship?

Who is considered for purposes of the amount in controversy requirement?


Only the representative is considered for citizenship.

Only the representative is considered for amount in controversy.

Exception: the Class Action Fairness Act grants subject matter jurisdiction if:

  • Any class member (not just the representative) is of diverse citizenship of any defendant, and
  • The aggregated claims of the class exceed $5M


What is the basic idea behind preliminary injunctive relief?

P is planning to file suit or has sued, and is worried that D may do (or fail to do) something that will prejudice P's case.

The court is nervous about this because the merits of the case have not been decided

E.g., a court enjoins employee D from using trade secrets obtained from employer P pending resolution of a case between them


What can a party do in the meantime while he waits to get a preliminary injunction?

Seek a temporary restraining order (TRO)


What is it called whenever a court does something without giving notice to the other party?

Ex parte


Can the court issue a TRO ex parte?

Yes, but only if:

  1. The applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm if he must wait until the other party is heard, and
  2. The applicant's lawyer certifies in writing his efforts to give oral or written notice to D or D's lawyer (or why such notice should not be required under the circumstances)


What does a TRO applicant have to do if the court issues a TRO?

Post a bond (security) to cover the other side's costs and damages caused if it turns out the restraint is wrongful


What does a TRO have to include?

It must state:

  • Its terms in specificity
  • In detail what D must do or refrain from doing
  • Why it was issued
  • Why the threatened injury to P was irreparable


If the court issues a TRO, what does the court have to do?

Serve the order on D as soon as possible


If the court issues a TRO, what can D do?

Move to dissolve or modify the TRO


How long is a TRO effective?

14 days (or lesser time state by court)

If applicant shows good cause before expiration, it can be extended for another 14 days

So a TRO cannot extend beyond 28 days


What is the purpose of a preliminary injunction

Maintain the status quo until the court can adjudiicate the underlying claim on the merits


Can a prelminary injunction be granted ex parte?



What does an applicant have to show to get a preliminary injunction?

  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 (i.e., threatened harm to applicant outweighs harm to other party if injunction is issued)
  4. The injunction is in the public interest


What does a preliminary injunction applicant have to do if the court issues a preliminary injunction?

The applicant must post a bond, just as with a TRO


What does a preliminary injunction have to include?

It must state:

  • Its terms in specificity
  • In detail what D must do or refrain from doing
  • Why it was issued
  • Why the threatened injury to P was irreparable


Can a party appeal a preliminary injunction?

Yes. Immediately.


What should a plaintiff do if he wants to withdraw his case?

If D has not served an answer or motion for summary judgement:

  • P has a right to make a voluntary dismissal by filing (not a motion) a notice of dismissal

Otherwise, P can:

  • Make a motion for a voluntary dismissal.
    • This can be done anytime.


What happens if P files a timely notice of dismissal?

The case is dismissed without prejudice (i.e., P may re-file the case), but only once


What happens if P files a timely notice of dismissal in the second case?

The case is dismissed with prejudice (i.e., P cannot refile the case)


What will happen if D does not respond to the complaint in time?

  • The court will enter default (if P moves for it) and
  • Enter a default judgment (if requirements are met or P applies to a judge for it)


What is default?

notation by the court clerk on the docket sheet of the case


Does the court enter default automatically on the 22nd day after service of process on D?

No. P must move for it.

It is not automatic but it is easy to get


What does P have to show to get the court clerk to enter default?

That D failed to respond in time.

Until default is entered, D can respond by motion or answer (even beyond 21 days)


What is the effect of entry of default?

It cuts off D's right to respond


Does entry of default entitle P to recover?

No. In order to recover P must get a default judgment.


How does P get a default judgment?

  • First, the court must enter default
  • Then, the clerk of court can enter judgment if:
    • D made no response at all
    • The claim itself is for a sum certain in money
    • Claimant gives an affidavit (sworn statement)
    • D is not a minor or incompetent
  • Otherwise, D must apply to the court (i.e., a judge) to get a default judgment
    • The judge will hold a hearing and has discretion
    • D only gets notice of this hearing if he appeared in the case


P sues D for $100K. What is the most she can recover on a default judgment?

$100K. You cannot get more than you pleaded.


P sued D for damages, but not an injunction. On default judgment, can the court enter an injunction?

No. You cannot get a different kind of relief than you pleaded.


If a case goes to trial, can P recover more (or a different type of relief) than she pleaded in her complaint?

Yes. Unlike with a default judgment, P is not restricted by her pleadings.


Is there anything that D can do if the court enters default or a default judgment?

Yes. D can move to have the court set aside the default or default judgment by showing:

  • Good cause (e.g., excusable neglect)
  • A viable defense in the case


What FRCP is the motion to dismiss for failure to state a claim?

FRCP 12(b)(6)


What is FRCP 12(b)(6)

Motion to dismiss for failure to state a claim


In ruling on a FRCP 12(b)(6) motion, what does the court consider?

Only P's allegations of fact in the complaint, asking:

  • If these facts were true, would P win a judgment?

The court ignores P's legal conclusions


If the law does not recognize a claim based on the facts in P's complaint, what will the court do?

  • Grant D's FRCP 12(b)(6) motion to dismiss
  • Let P amend his complaint to try to state a claim
    • This is common


What is the name for a FRCP 12(b)(6) motion that is made after D has answered the complaint?

Motion for judgment on the pleadings


What is FRCP 56?

Motion for summary judgment


What FRCP is motion for summary judgment?



Can the judge look at evidence when deciding an FRCP 12(b)(6) motion to dismiss for failure to state a claim?

No. The judge can only look at the face of the complaint.


What does the party moving for summary judgment have to show?

  1. There is no genuine dispute of material fact, and
  2. The party is entitled to judgment as a matter of law



If the party moving for summary judgment satisfies the requirements, does the court have to grant summary judgment?

No. It is discretionary.


Who can move for summary judgment and when can they do so?

Any party can move for this no later than 30 days after the close of discovery.


What evidence can the court look at when deciding a summary judgment motion?

  • Affidavits
  • Declarations
  • Deposition testimony
  • Interrogatory answers

All of these items are under oath


When are the following motions made?

  • FRCP 12(b)(6)
  • FRCP 56
  • FRCP 50

  • FRCP 12(b)(6)
    • Before discovery
  • FRCP 56
    • After discovery, but before trial
  • FRCP 50
    • During or after trial


Can P rely on his complaint to defeat a motion for summary judgment?

Not unless:

  • The complaint is verified (rare)
  • D failed to deny an allegation in the complaint, so it is treated as a fact

A motion for summary judgment is decided based on the evidence.

Pleadings are not evidence, unless:

  • They are verified (i.e., under oath)



Can an affidavit explaining what someone heard be used to defeat a motion for summary judgment?

Probably not. This is hearsay and the evidence used to defeat the motion must be first-hand knowledge.

It may work if the affidavit is admissible hearsay.


What is a scheduling order?

An order that the court enters after the FRCP 26(f) conference that schedules cut-offs for:

  • Joinder
  • Amendment
  • Motions
  • Completion of discovery

This is a roadmap for how the litigation proceeds up to trial


What is a pretrial conference?

A conference that determines:

  • The issues to be tried
  • The evidence to be proferred at trial


Why is the pretrial order an important document?

It supersedes the pleadings

It is a roadmap of:

  • Issues to be tried
  • Evidence to be presented
  • Witnesses


What is a motion in limine?

A motion during which the judge decides whether the jury should hear certain evidence


When is there a right to a civil jury trial in federal court?

What provides it?

The Seventh Amendment provides the right to a jury trial in civil actions at law but not suits in equity

If a case involves both law and equity, the jury first decides the facts underlying the legal claim and the judge determines the equity claim


Does the Seventh Amendment apply in state court?

No. The Seventh Amendment is not incorporated


In order to get a civil jury trial, what does a party have to do?

The party must demand a civil jury trial in writing no later than 14 days after service of the last pleading raising a jury triable issue

Otherwise, they waive the right to a jury


What are the two kinds of challenges to jurors?

  1. For cause
    • E.g., the potential juror will not be impartial
  2. Peremptory
    • No reason necessary


How many "for cause" strikes can a party make?

How many "peremptory" strikes can a party make?

For cause - unlimited

Peremptory - 3 per side


What are the limits on peremptory strikes?

They can only be used in a race and gender neutral manner

This is because jury selection is state action


How many jurors are on a civil jury in federal court?

Minimum - 6

Maximum - 12


What jury vote is required for a verdict?

Unanimous unless the parties agree otherwise


Can the parties influence the jury instructions?

If so, when?


The parties submit proposed jury instructions to the judge at the close of evidence or earlier.

The parties can make specific objections to the instructions and to the rejection of proposed instructions before the final argument and instruction.



When can a party raise the jury instructions on appeal?

A party can raise a problem with the instructions on appeal as long as:

  • An objection was made before the jury was "charged", or
  • The instruction contained plain error that affects substantial rights


What are the different types of verdicts?

  • General
    • Says who wins, and if P wins, what the relief is
    • The clerk then enters judgment on the general verdict
  • Special
    • Includes answers to specific questions about facts in dispute
    • The judge then reaches legal conclusions based on the facts founds
  • General with special interrogatories
    • Jury gives a general verdict but also asks specific questions designed to ensure that it considers the important issues


What happens if the jury returns a general verdict with special interrogatories but the answers to the interrogatories are inconsistent with the verdict?

No judgment can be reached

The court can:

  • Instruct the jury to reconsider its answers, or
  • Order a new trial


What happens if there is juror misconduct?

The judge can:

  • Set aside the verdict, or
  • Order a new trial


What does it mean for the judge to "impeach" a verdict and when can that be done?

It means the judge sets aside the verdict or orders a new trial.

A verdict may be impeached based only on "external" matters


Can a new trial be ordered on the basis of a juror's testimony that another juror was on drugs during deliberations or lied during jury selection to hide bias?

No these are intrinsic matters that cannot be considered

A judge can only impeach a verdict based on extrinsic matters


Can a judge refuse to impeach a verdict even if juror misconduct was external?

Yes, if the misconduct was harmless

E.g., juror chatted for a momen with P about the weather


When there is no jury, who determines the facts?

The judge


What does the judge specifically have to do in a bench trial?

  • Record her findings of fact on the record or in writing
  • Record her conclusions of law separately from the findings of fact
  • Record the judgment


What is a motion for judgment as a matter of law (JMOL)?


This used to be referred to as a directed verdict

This is a motion requesting that the case not go to the jury because:

  • Based on the evidence presented at trial,
  • Reasonable people could not disagree on the result

E.g., even though the evidence from discovery indicated a genuine dispute of material fact (and thus a motion for summary judgment would not have been granted), there was no evidence presented at trial to suggest such a dispute

Note: just as with FRCP 12(b)(6) and 56, the court views the evidence in the light most favorable to the non-moving party


What is a renewed motion for judgment as a matter of law (RJMOL)?

This used to be referred to as judgment notwithstanding the verdict (JNOV)

It is the same as JMOL except it comes up after trial

E.g., the jury reached a conclusion that reasonable people could not have reached


What are the prerequisites to brining a RJMOL?

  1. It must be within 28 days after entry of judgment
  2. The moving party must have moved for JMOL at a proper time at trial


What is a motion for a new trial?

What are its prerequisites?

What are examples?

A motion after judgment asking for a new trial due to some non-harmless error at trial

This motion must be made within 28 days after judgment


  • Judge gave an erroneous jury instruction
  • New evidence that could not have been obtained before with due diligence
  • Misconduct by juror, party, or lawyer
  • Judgement is against the weight of the evidence (serious error of judgment)
  • Inadequate or excessive damages


What should a party do if they were entitled to RJMOL but waived it by not moving for JMOL properly at trial?

Move for a new trial


What is less drastic:

  • New trial

New trial because it results in starting over so the same party could still win

RJMOL results in taking the judgment away from one party and giving it to the other


What is the standard for ordering a new trial based on a damages figure that is excessive or inadequate?

The damages figure must shock the conscience


If the damages figure "shocks the consicence," what might the judge do to avoid a new trial, which is a lot of work?

  • Remittitur
    • Playing hardball with P
      • P can take a lesser amount of damages (set by the judge), or go through a new trial
  • Additur
    • Playing hardball with D
      • D can pay a greater amount of damages (set by the judge), or go through a new trial


Are remittitur and additur allowed in both state and federal court?

Remittitur - yes

Additur - no (only state court)

SCOTUS has determined that additur violates the Seventh Amendment right to a jury trial. Remittitur does not because the jury verdict is still being accepted; additional damages are just being tacked onto it


What is a motion for relief from order or judgment?

What are the grounds for this motion?

When does the motion have to be made?

A motion asking the court to set aside an order or judgment it entered

Grounds and Timing

  • Clerical error
    • Anytime
  • Mistake or excusable neglect - e.g., default
    • Reasonable time (never more than 1 year
  • New evidence that could not have been discovered with due diligence in time to move for a new trial
    • Reasonable time (never more than 1 year)
  • Judgment is void - e.g., no SMJ
    • Reasonable time (no maximum)


What is the final judgment rule?

As a general rule, you can only appeal from final judgments

A final judgment is an ultimate decision by the trial court on the merits of the case

To determine if a ruling is a final judgment, ask:

  • Does the trial court have anything left to do on the merits of the case?


Is the denial of a motion for summary judgment a final judgment?

No. After denying (not granting) summary judgment, the trial court still has the entire case before it


What does a party do if it wants to appeal?

File notice of appeal with the TRIAL COURT within 30 days after entry of final judgment


Is the grant of a motion to remand to state court a final judgment?

Generally not. This is by statute.


Can a party appeal even if there is not a final judgment?

Maybe. This would be interlocutory review


When is a party entitled to interlocutory review as a matter of right?

When the appeal is based on orders granting, modifying, or refusing preliminary or permanent injunctions


What does the Interlocutory Appeals Act say?

It allows appeal of a non-final order if:

  • The trial judge certifies that the order involves a controlling issue of law
  • As to which there is substantial ground for difference of opinion, and
  • The court of appeals agrees to hear it


What is the "collateral order" exception?

An appellate court has discretion to hear an issue if it:

  • Is distinct from the merits of the case
  • Involves an important legal question, and
  • Is essentially unreviewable if the parties must await a final judgment

E.g., party claims it is an arm of the state and is immune from litigation, but the trial court rejects this argument and demands litigation - the party can appeal this as a collateral order


What if a case involves multiple claims or multiple parties, and the court rules on one claim but not the others - is this a final judgment and thus appealable?

No because other claims are still pending.

BUT the court can expressly direct entry of a final judgment on the particular claim it decided and allow appeal if:

  • It makes an express finding that there is no just reason for delay


When can a court of appeals hear an order granting or denying certification of a class action?

The court of appeals has discretion to do so if:

  • The moving party seeks review within 14 days of the order

Note: the appeal does not stay the trial court proceedings unless the court of appeals or district court says so


What is an extraordinary writ?

Also referred to as a mandamus or prohibition

An original proceeding in appellate court to compel the trial judge to make or vacate a particular order

Only available if the lower court clearly violates a legal duty


What is the standard of review on appeal when the district court decides questions of law?

De novo - i.e., there is no deference to the trial judge

E.g., trial judge put the burden of proof on the wrong side


What is the standard of review on appeal in a non-jury trial for which the judge decided questions of fact?

The court of appeals will affirm the judge's findings of fact unless they are clearly erroneous

Due regard must be given to the trial judge's opportunity to assess the credibility of witnesses at trial


What is the standard of review on appeal in a jury trial for which the jury decided questions of fact? 

The court of appeals with affirm the jury's findings of fact unless reasonable people could not have made that finding


What is the standard of review on appeal for discretionary matters (e.g., whether the trial court granted a motion to amend pleadings, to allow permissive intervention, etc.)?

The court of appeals with affirm the judge's decision unless he abused his discretion

This is very deferential


What is the standard of review on appeal for:

  • The content of jury instructions?
  • The judge's decision to give a particular jury instruction?

  • The content of jury instructions
    • De novo - this is a question of law
  • The judge's decision to give a particular jury instruction
    • Abuse of discretion - this is discretionary


On appeal, reversal is not required for an error (even an error of law) if ...

The error is harmless


If Case 1 and Case 2 are in different judicial systems (e.g., state and federal), what preclusion law does the court apply in Case 2?

The preclusion law of the judicial system that decided Case 1


Case 1 is litigated in federal court in Kentucky. Case 2 is litigated in state court in Arkansas. What preclusion law does the state judge in Case 2 use to determine whether there is claim or issue preclusion?

Federal law because Case 1 was decided by the federal system.

Note: federal common law governs preclusion in federal courts


What is claim preclusion?

What are its requirements?

Also known as res judicata

You only get to sue on a claim once - i.e., you only get one case in which to vindicate all rights to relief for that claim


  1. Case 1 and Case 2 were brought by the same claimant against the same defendant (i.e., same configuration)
  2. Case 1 ended in a valid final judgment on the merits
  3. Case 1 and case 2 asserted the same "claim"



A and B are involved in a car collision. In Case 1, A sues B and the case goes to final judgment. In Case 2, B sues A to recover for his injuries from the same crash. What is the result in Case 2?

Claim preclusion does not apply becuase it does not involve the same claimant against the same defendant

However, Case 2 is probably dismissed becuase B's claim is a compulsory counterclaim


What is the general rule to determine whether a case ended in a final judgment on the merits?

When the court entered judgement, that judgment is on the merits unless:

  • The court said otherwise, or
  • The judgment was based on:
    • Jurisdiction
    • Venue
    • Indispensible parties


How do you determine whether two cases asserted the same "claim"?

Majority view (including federal law)

  • A claim is any right to relief arising from the same transaction or occurence

Minority view

  • There are separate claims for property damage and personal injuries because those are different primary rights


How do you determine whether two cases involve the same claims when one is a property damage case and the second is a personal injury case that P did not know about when he brought the earlier case?

Some courts say the claims are the same, other courts say they are different.

There is not even a majority/minority view on this


What is issue preclusion?

What are its requirements?

Also referred to as collateral estoppel

You cannot sue on an issue that was already litigated and determined


  • Case 1 ended in a valid final judgment on the merits
  • The same issue was actually litigated and determined in Case 1
  • The issue was essential to the judgment in Case 1 (i.e., the finding on this issue was the basis for judgment)


Against whom can issue preclusion be asserted?

Only against somebody who was a party to Case 1 (or represented by a party to Case 1 - e.g., class action)


By whom can issue preclusion be asserted?

  • Always somebody who was a party to Case 1 (or represented by a party to Case 1 - e.g., class action)
  • Sometimes somebody who was not a party to Case 1


When can somebody who was not a party to Case 1 assert issue preclusion?

Nonmutual defensive issue preclusion:

  • Only if the party asserting issue preclusion:
    • Was not a party to Case 1 and is a D in Case 2, and
    • Had a full chance to litigate in Case 1

Nonmutual offensive issue preclusion:

  • Only if it is not unfair based on whether:
    • D had a full chance to litigate in Case 1
    • D had an incentive to litigate strongly in Case 1
    • The party asserting issue preclusion could have joined easily in Case 1 (i.e., if so, they should have)
    • There are no inconsistent findings on the issue
      • E.g., if there were multiple cases involving the issue and they came out differently