FJP Fixed Flashcards
(133 cards)
1
Q
A Federal Court has 1331 jurisdiction . . .
A
for cases “arising” under Federal Law.
There is no jurisdictional amount requirement.
2
Q
Under the Mottley well-pleaded complaint rule . . .
A
a plaintiff cannot rely on a defendant’s anticipated defense as a basis for 1331 jurisdiction.
The courts will only look at the plaintiff’s complaint to determine whether the case “arises” out of federal law.
3
Q
1331 cannot be invoked based upon . . .
A
- an “insufficiently substantial” federal question under Merrell-Dow
- an anticipated federal defense (Mottley)
4
Q
Merrell- Dow
A
- FQJ exists when a well-pleaded state law claim requires the decision of a “substantial” federal question
- Policy of Restraint- do not want to “federalize” large number of state claims
5
Q
If a complaint does not refer to federal law, but still “necessarily presents” a federal question . . .
A
the defendant can remove under 1441(a).
Mottley is satisfied if the defendant can show the plaintiff’s petition NECESSARILY presents a question “arising under federal law.”
6
Q
General Personal Jurisdiction Over a Person
A
Under Goodyear and Daimler, for a court to be able to exercise general personal jurisdiction, their contacts with the forum state must be so “continuous” and “systematic” as to render them essentially “at home” in the forum state.
A person’s domicile is the paradigm forum for general personal jurisdiction.
7
Q
General Personal Jurisdiction: Party’s Contacts (as discussed in analysis)
A
- “constant” and “pervasive” = YES GPJ
- “casual” and “isolated” = NO GPJ
8
Q
Specific Personal Jurisdiction Over a Person: Intro
A
In order for a court to exercise specific personal jurisdiction over a party, the party’s minimum contacts with the forum state must arise out of or relate to the claim.
A party must show “purposeful availment’‘ with the forum.
9
Q
Specific Personal Jurisdiction: If the Suit Involves a K Between 2 Parties
A
Purposeful availment is determined using the four Burger King factors.
- terms of the contract
- anticipated future consequences of the contract
- site of contract
- negotiations, and
- course of dealings
10
Q
Specific Personal Jurisdiction purposeful availment
A
The court must ensure that a finding of purposeful availment does not violate “traditional notions of due process and substantial justice.”
This is measured using five due process factors.
11
Q
Specific Personal Jurisdiction Over a Person: Due Process Factors
A
- Degree of burden imposed
- Plaintiff’s interest in obtaining convenient and effective relief
- Interest of the Louisiana forum in exercising jurisdiction over Plaintiff’s claim
- Interstate efficiency, considering the location of witnesses and evidence
- Advancement of social policy, considering the availability of alternative forums
12
Q
General Personal Jurisdiction Over a Corporation
A
Per Goodyear, a federal court may exercise general personal jurisdiction over a foreign corporation if its “affiliations are so continuous and systematic as to render it essentially “at home” in the forum State.”
The paradigm factors to determine where a corporation is are where it is incorporated, and its principal place of business.
13
Q
Specific Personal Jurisdiction Over a Corporation
A
In order for a court to exercise specific personal jurisdiction over a party, the party’s minimum contacts with the forum state must arise out of or relate to the claim.
A party must show “purposeful availment’’ with the forum.
14
Q
Specific Personal Jurisdiction Over a Corporation: Considerations for Purposeful Availment
A
- Where are the products bought and sold?
- How did they end up in the forum state?
- Do they advertise?
- If they have a presence in the forum state, is it related to the claim?
15
Q
Specific Personal Jurisdiction: Website Analysis
A
The Fifth Circuit uses the Zippo test to determine whether the operation of a website can demonstrate purposeful availment.
When a non-resident utilizes an “interactive” website that enables customers to buy and services, this conduct constitutes purposeful availment.
Evidence is required to show the website “targeted” Louisiana customers or the Louisiana market.
However, the website need not “purposefully direct its activities” towards Louisiana.
16
Q
What standards should govern a 12(b)(6) Motion to dismiss for failure to state a claim?
A
Twombly and Iqbal standards
The court will dismiss the complaint if the defendant can show that the claim is “not cognizable as a matter of law,” or the complaint fails to raise claims that are “plausible” and establish an “entitlement to relief.”
17
Q
Options for Joinder
A
- FRCP 18
- joining multiple Ds
- joining multiple Ps
- FRCP 19
18
Q
FRCP 18
A
allows a party to join as many “independent and alternative claims,” as the party has against the opposing party
- no relationship required
19
Q
Permissive Joinder Rule 20: Joining Multiple Ps
A
assert a right to relief:
- arising out of same T&O
- share common question of law or fact
20
Q
Permissive Joinder Rule 20: Joining Multiple Ds
A
assert a right to relief:
- arising out of same T&O
- share common question of law or fact
21
Q
FRCP 19
A
enables a Defendant to dismiss the suit on the basis the the Plaintiff failed to join a necessary party
22
Q
Necessary Parties Under FRCP 19
A
- a non-party whose absence from the suit will mean that complete relief cannot be accorded by the court among existing parties
- a non-party who claims an interest relating to the subject of action and is so situated that disposing of the action without him will impair or impede his ability to protect his interest and
- a non-party whose absence may leave an existing party subject to a substantial risk of incurring multiple, inconsistent obligations
23
Q
Joinder Obstacles
A
- loss of SMJ
- failure to join a necessary party
24
Q
Joinder Obstacles: Loss of SMJ = JOINDER NOT FEASABLE
A
Joinder is not permissible if joinder destroys SMJ
The court is given discretion whether the suit should proceed or be dismissed (FACTORS)
25
Failure to Join a Necessary Party
A Defendant can move to dismiss a suit on the ground of FRCP 19 stating the case should not proceed because of the Plaintiff’s failure to join a necessary party
26
Fraudulent Joinder
enables a D to remove or remand a case if they can demonstrate the P sued a party which they have no means of recovering against for the purpose of obtaining or destroying complete diversity.
27
What D Must Establish for Fraudulent Joinder
D must show, after the removal, that there is **no reasonable possibility for the P to recover against the fraudulently joined Defendant.**
The standard used to evaluate the “reasonably possibility” standard is the same standard used when evaluating a motion for summary judgment.
28
Motion for Summary Judgment
To successfully make a motion for summary judgment, the moving party must demonstrate that there is **no dispute as to any material fact and that he is entitled as to judgment as a matter of law**
29
Court's Procedure for MSJ
- court will look at affidavits supplied by each side
- court cannot assess the credibility of witnesses or weigh evidence
- the court must construe the facts in the light most favorable to the non-moving party
30
Affidavit Requirements for MSJ
- based on affiant's personal knowledge
- set forth facts admissible in evidence
- affiant is competent to testify on the matter
31
An affidavit is introduced that speaks for or against the witness credibility should be __________ for summary judgment purposes.
An affidavit is introduced that speaks for or against the witness credibility should be **DISREGARDED** for summary judgment purposes.
32
Steps for Removal
**all parties who have been _properly joined and served_ must join or consent in removal by signing the notice of removal or providing written consent**
1. D **files Notice in FED court that encompasses the location** where state court suit is pending
2. when multiple Ds, each have **30 days to file NOR**, starting from the date that each D received formal service of both state court petition/ complaint and citation/ summons
- originally non removable?
- later-served/ earlier-served D?
3. Ds provide "**short and plain statement" of the SMJ that provides grounds for removal**, including facts concerning basis for original federal SMJ
4. Ds must **sign notice and attach a copy of all state court process, pleadings, and orders**
5. Ds file **NOR and attachments in FED court and serve them on P** ***with a MEMO*** explaining reasons for removal
6. Ds take **NOR, attachments, and a copy of the memo and file them in STATE court** *(this effectuates removal)*
33
Removal Timing When Non-Removable at first, then Removable?
if a suit is non-removable when filed but becomes removable later, the 30 days for each Defendant runs from the date each received a "PAPER" showing the case was removable
34
"Paper" Showing Removal is Available
- an amended pleading
- a motion
- a judicial order
- the record of the state court proceeding
- responses to discovery
- “other papers"
35
Removal Timing When Multiple Ds Served at Different Times
if there are multiple Defendants who are served at different times, and if a later-served Defendant files a Notice of Removal, then any earlier-served Defendant may consent to the removal even though that Defendant did not previously initiate or consent to removal
36
Removal: 1 Year Past Filing Rule
A suit may not be removed on the basis of 1332 jurisdiction after one year from the filing date, even if the suit was not removable at first, and became removable later.
The one-year period is a hard deadline.
The one exception is when the plaintiff acted in bad faith to prevent the defendant from beginning removal procedures.
37
Bad Faith of P for Evading Removal
- failure to describe seriousness of injuries in petition
- intentional delay in serving D
- vague answers to interrogatories/ damages request
- delaying medical records
- requesting numerous extentions
38
Removal: Forum Citizen Defect Rule
If D relies on 1332 SMJ as basis for removal and if ANY D is a **citizen of the forum state** in which P's suit was filed, then presence of that D creates a defect
39
Procedural Defect in Removal Procedure
If the plaintiff believes there to be a procedural defect in the removal procedure, they must **file a motion to remand to get the case back into state court.**
The motion **must be filed within 30 days of the date when the notice of removal was initially filed**.
If the motion is **not filed, or, filed after** this time period, the objection is deemed to have been **waived.**
40
Motion to Remand is Untimely
Ordinarily, there is NO statutory time limit for filing a Motion to Remand on the grounds of a defect in SMJ because of the principle that a defect in SMJ may be raised by any party at any time during the litigation, or by the court sua sponte.
EXCEPTIONS:
- *Caterpillar* rule
- Fraudulent Joinder Doctrine
41
*Catepillar* Rule
remand is not available for a defect in §1332 SMJ when:
1. **lack of complete diversity** existed when the Notice of Removal was FILED; AND
2. fed court **did NOT recognize defect and remand**; AND
3. lack of complete diversity was **REMEDIED LATER** so that defect did not exist when **trial began**
trial judgment = **"jurisdictionally valid"** / remand may NOT be obtained
*if defect continues to exist until after trial BEGINS then it's TOO LATE to be cured and it will be REMANDED when fed court or a party notices*
42
Conflicts Between States regarding choice of law
Under Klaxon, the federal court must apply the same “choice of law” rules that would be followed by the Supreme Court in the forum state
43
Conflicts Between States regarding choice of law: CONTRACTS
44
Conflicts Between Federal and State substantive law
To discourage forum shopping and inequitable administration of the law, a federal court must apply state substantive law in a 1332 suit as long as there is no federal law on point according to the Erie doctrine
- "outcome determinative"
- no federal rule on point
- damages/ remedies available
45
Conflicts Between Federal and State Procedural law
According to Erie Doctrine from Hanna v. Plumer, a federal procedural law will supersede a state procedural law when the two are in conflict in a 1332 diversity case.
46
Rule 11 Motion for Sanctions
Prior to the filing of a Rule 11 **motion for sanctions**, the opposing attorney must be served with the motion
They are given **21 days to withdraw** the complaint
The motion must **articulate the reason why the complaint has “no basis in fact.”**
P MUST EITHER THEN WITHDRAW OR NOT . . .
47
Two elements must be met for the sanctions to be applied under Rule 11:
- The pleading must be “legally or factually baseless,” and
- The Plaintiff’s attorney did not conduct a “reasonable and competent inquiry” before filing the complaint
48
Rule 11: After P is given 21 Days to Withdraw . . .
- P withdraws = motion will never be filed
- P does not withdraw = federal court will determine whether the motion should be granted by ascertaining **whether the complaint was based on the attorney’s “best knowledge, information, or belief” and was formed after a reasonable investigation under the circumstances**
49
Proper Venue
Under 1391(b)(1), proper in “a judicial district where any defendant resides if all defendants reside in the same state”
If 1391 is not available, then the proper venue is in the district in which a “substantial part of the events or omissions given rise to the claim occurred under 1391(b)(2).
50
What is a Timely Notice of Appeal
Per FRAP 4, a notice of appeal must be filed with 30 days of entry of judgment
- However, FRAP Rule 4(a)(4)(v) provides that if a party files a timely motion for new trial under Rule 59, then the 30-day period runs “for all parties from the entry of the order disposing of the last such remaining motion”
51
SMJ
In order for a federal court to have valid subject matter jurisdiction, there must be complete diversity between the parties (each plaintiff must be a citizen of a different state than each defendant) and the amount in controversy must exceed the jurisdictional amount of $75,000.
52
For individuals, state citizenship is determined by . . .
DOMICILE, which is determined using both a person’s physical presence in the state, as well as their intent to remain indefinitely.
The indefiniteness only needs to be for the foreseeable future, not permanently.
A person can only have one state of citizenship.
53
Factors for Domicile
- residence
- registered to vote
- own/ rent home
- time in new place
- job
- license/ registration
*statements alone are not sufficient*
54
Domicile Presumption
A person’s old domicile is presumed to be their domicile unless that presumption can be rebutted by a preponderance of the evidence that the person intends to change their domicile
55
Citizenship of a Corporation
A corporation can have multiple citizenships.
Their citizenships are the state(s) in which they are incorporated, and the one state in which it has its principal place of business
56
PPB
To determine the corporation’s principal place of business, courts use the Hertz NERVE CENTER test.
Under the Hertz test, the principal place of business is its “nerve center,” or headquarters: where a “corporation’s high-level officers direct, control, and coordinate the corporation’s activities.”
57
Citizenship of Non-Corporate Entity
Non-corporate entities are given the citizenship of all of its members. Different partners’ titles are irrelevant.
The non-corporate entity’s state under which it was organized is irrelevant for diversity purposes.
58
Citizenship of Decedent/ Incompetent/ Child
When a representative party files suit in federal court on behalf of a decedent’s estate or on behalf of “an infant or incompetent,” then the representative’s actual citizenship will be DISREGARDED and the representative will be deemed to be a citizen only of the same State as the the estate they are representing, or of the same State as the infant or incompetent person.
59
Direct Action Suit
When:
- P chooses to **sue a company** (a corporation or non-corporate entity);
- that provided **insurance** to the individual or entity that caused harm to the plaintiff; AND
- chooses NOT to join the individual or entity who actually caused harm to the plaintiff
*deemed to include both actual citizenship AND the unnamed defendant's citizenship to avoid* **manufacturing diversity**
60
Jurisdictional Amount
For the jurisdiction amount requirement to be met, the plaintiff's complaint must allege, in **good faith**, that the jurisdictional amount **exceeds $75,000, excluding interest and costs.**
The burden on the plaintiff is that it must be “**facially apparent**” that the complaint is **LIKELY to exceed** the threshold.
The amount is measured at the **time the case is filed.**
61
Entire amount of debt will be included to meet jurisdictional amount when
- canceling K for fraud
- acceleration clause
- DJ that K is valid and remains effective
62
Aggregating Claims and Jurisdictional Amount
- Multiple Plaintiffs cannot aggregate the values of their claims against a single Defendant when one Plaintiff satisfies the JA requirement, unless the plaintiffs are claiming a single title or right and a common undivided interest
- Multiple Plaintiffs cannot aggregate the value of their claims against a single Defendant if no Plaintiff can satisfy the JA requirement alone
63
Dismissal Based on Jurisdictional Amount
In order to dismiss a claim based on lack of 1332 subject matter jurisdiction because the jurisdictional amount is not met, the defendant must **demonstrate the plaintiff cannot recover the jurisdictional amount “_to a legal certainty_” at the pleading stage.**
64
Dismiss based on incomplete diversity after party moves
For valid 1332 subject matter jurisdiction, the parties in a suit need to be diverse only on the day of filing.
If a party changes citizenship to where diversity is no longer complete, but only after the suit is filed, then there is still valid 1332 subject matter jurisdiction.
The suit can only be dismissed if diversity is incomplete before filing
65
Does the Court have 1983 Jurisdiction? Civil Rights Suit
66
Supplemental Jurisdiction
*JOINDER OF CLAIMS*
- To get supplemental jdx, claim 2 must be “**so related”** to the original claim that they **form same “case or controversy”**
- “So related”= common nucleus of operative fact
67
Even if CNOF Test Satisfied for Supplemental Jx, Court Can Decline IF:
- Novel/complex issue of state law
- Supplemental claim “substantially predominates” over original claim
- Original claim has been dismissed
- “Exceptional circumstances” for other “compelling” reasons
68
Counterclaim
D suing P in same action
69
Compulsory Counterclaim
- Arises out of the same transaction or occurrence that is subject matter of opposing party’s claim
- 1367 Supp Jdx = Always attached, no independent jdx needed
70
Permissive Counterclaim
- Claim against Plaintiff that is completely unrelated
- 1367 Supp Jdx = NEVER available. Needs to have independent jdx
71
Rule 13 Cross- Claim
- Party suing a co-party
- Needs to be arising out of same transaction or occurrence as original action or the subject of a counterclaim
- 1367 Supp Jdx = Always attaches to compulsory cross-claims
72
Rule 14 Impleader
- Defendant brings in a party who may be liable if Defendant found to be liable (“if I am found liable, impleader is liable to me”)
- Should bring within 14 days or get leave of court
73
Impleader Claim by D
1367 Supp Jdx = attaches to compulsory counterclaims so impleaders always covered, no independent jdx needed
74
Impleader Claim by P
1367 Supp Jdx = NOT available when suit is brought under 1332. Needs independent jdx
75
Impleaded D bringing Claim against P
1367 Supp Jdx = Always available
76
Rule 24 Intervention
77
Venue When D Resides ABROAD
any federal district in the US -- presence of a D shall be disregarded in determining where venue is proper
78
What rules govern the proper venue for a removed suit?
general venue statutes do NOT apply to determine where pending _state court suit_ shall be REMOVED
DOES govern the TRANSFER of an action removed BETWEEN _federal courts_
79
Transfer of Venue Under § 1404(a)
for the **convenience** of parties and witnesses, in the **interest of justice**, fed district court may transfer any civil action from a federal district with PROPER venue TO:
(a) any fed district where action might have been brought
OR
(b) any fed district to which ALL parties have CONSENTED
80
Transfer of Venue Under § 1406
when a suit is filed in an IMPROPER fed district:
(a) fed court shall grant **MOTION TO DISMISS** on grounds of improper venue
OR
(b) if interest of **justice**, fed court shall transfer case to ANY fed district **where case could have been brought**
OR
(c) if Ds **WAIVE** then fed court an proceed
81
Violations Covered by § 1983
violations of rights established by federal constitution/ statutes/ case law
82
Who are the Defendants in a 1983 Suit?
- STATE government OFFICIALS **acting under color of state law**
- LOCAL government ENTITIES/ OFFICIALS
83
Remedies in 1983 Suit
- damages
- injunctions
- declaratory relief
*reasonable attorney fees to **P** only if P wins/ to **D** if D wins and P acted in **bad faith** by bringing frivolous claim*
84
Suit for Injunction and Declaratory Judgment against a State Official in Their Official Capacity
- rely on **EX PARTE YOUNG** doctrine to bring 1983 claim seeking DECLARATORY OR INJUNCTIVE relief of a state official in his OFFICIAL CAPACITY
- avoids running afoul of 11th am immunity because it does not extend to OFFICIALS SUED IN THEIR OFFICIAL CAPACITY *(when a state official acts in official capacity in enforcing a state law and thereby violated a federal law, he loses cloak of 11th am and may be sued for an injunction to STOP the official from violating the federal right & may also be sued for declaratory relief)*
- CANNOT SUE FOR DAMAGES because of 11th amendment immunity and CANNOT SUE STATE OR THE DEPARTMENT (ARM OF THE STATE)
85
Suit for Damages against a State Official in Their Personal Capacity
11th amendment does NOT APPLY unless D is sued in **OFFICIAL** capacity (because requires damages to be paid out of State treasury)
therefore you CAN sue an official in their personal capacity to receive DAMAGES
86
Collateral Order Doctrine
the order:
(1) **conclusively determines a disputed question**
(2) resolves an **important issue** *(i.e. immunity)* that is separate from the merits
(3) resolves an issue that is **effectively unreviewable later** *(i.e. purp of 11th Am immunity will be defeated if D must wait until judgment is final to seek review of order)*
= D can seek immediate appeal of the order
87
§1983 Suits against “Local” (Parish, County, or City) Officials or “Local” Entities
- CAN get damages if P can show **custom or policy** of the city based on:
1. the City’s enactment of laws, statutes, or ordinances
2. decisions by “policymakers” for the City
3. the failure to train officials (such as city police officers)
OR
4. the inadequate screening of employees
- NO 11th AM IMMUNITY
- NO common law QUALIFIED IMMUNITY
- NO PUNITIVE DAMAGES against CITY
88
Damages from Local Official
- if sued in OFFICIAL CAPACITY = can get damages if show **custom or policy**
- if in PERSONAL capacity = yes, but he will have common law qualified immunity defense for acts done in **reasonable food faith** *(reasonable officer would not reasonably have known that his conduct violated established constitutional rights)*
- punitives =????
89
*Pullman* Abstention
fed court has discretion to invoke *Pullman* abstention when it may be **unnecessary** for the court to decide a **federal constitutional challenge to a STATE LAW** BECAUSE:
- the meaning the state law is **UNCLEAR** AND
- it is possible a state court decision resolving the meaning of the state law could make its **UNNECESSARY** for the fed court to decide the **federal question** (i.e. the questions raised will become moot)
- P will not be **prejudiced** by the delay required by *Pullman* abstention
*fed court will STAY P's action pending state court litigation, then fed court will either DISMISS or PROCEED on the constitutional claims*
90
*Burford* Abstention
*DISMISSES SUIT OUTRIGHT*
serves to prevent **interference** by fed court with **administrative state regulation schemes** when those schemes relate to **local matters** that traditionally are subject to state regulation
- claim MUST be SEPARABLE from state agency's **fact-finding and enforcement of regulations**
91
*Burford* Factors Supporting DISMISSAL
1. state agency head has **exclusive authority** to enforce state regulations
2. **hearing** scheduled
3. correct resolution requires **expert knowledge** of the commissioner
4. if fed court grants requested relief, ruling may **conflict** with a later decision by commissioner
92
*Younger* Abstention
*CLAIM PRECLUSION*
based on federalism . . . a federal court must abstain from issuing the requested injunction to stay the criminal prosecution that began with the filing of the felony bill of information
= fed court will abstain and dismiss motion for an injunction against pending state court proceedings
93
Exceptions to *Younger* Doctrine
YOUNGER DOES NOT APPLY TO:
1. P can show state prosecution was brought in **bad faith/ for purposes of harassment**
OR
2. P has **no meaningful opportunity to raise claim** in the CRIMINAL state court proceedings
94
Exceptions to *Younger* Doctrine
YOUNGER DOES NOT APPLY TO:
1. P can show state prosecution was brought in **bad faith/ for purposes of harassment**
OR
2. P has **no meaningful opportunity to raise claim** in the CRIMINAL state court proceedings
95
*Younger* Abstention in Civil Proceedings
*Sprint Communications* applies *Younger* in EXCEPTIONAL BUT JUSTIFIED proceedings:
1. When there is a pending state “civil enforcement proceeding” in which the State is a party to a civil proceeding that is “in aid of and closely related to” the State’s CRIMINAL statutes
OR
2. When there is a pending state “civil proceeding involving certain ORDERS” that are uniquely in furtherance of the state courts’ ability to perform their judicial functions
96
Tax Inunction Act
§ 1341
federal courts shall NOT **enjoin/ suspend/ restrain** the **assessment/ levy/ collection** of any TAX under _state or local law_ where a **plain, speedy, and efficient remedy** may be had in state court
if applicable = fed court DISMISSES suit and P must seek remedy in state court (DEPRIVES fed court O SMJ)
97
“plain, speedy, and efficient remedy in the State courts”
when State law provides the party challenging the tax with a “FULL HEARING and JUDICIAL DETERMINATION” at which the party may raise any and all CONSTITUTIONAL objections to the tax, with review authorized in the State courts
98
What is the time limit for service of a copy of the Complaint and Summons?
within 90 days after complaint is filed
99
Who is not qualified to perform service?
- a person who is a party
- a person under 18
100
What are the requirements for another person to receive service on behalf of the Defendant at his or her “place of abode”?
- other person must RESIDE there AND
- person must be of suitable AGE and DISCRETION
101
When will a court extend time for service?
if service is late but P shows **good cause**
102
What is the first step in the process for the Plaintiff to obtain waiver of service from the Defendant?
P sends to D by FIRST CLASS MAIL:
- copy of the complaint
- request for waiver
- two copies of waiver
- prepaid means of returning executed waiver
103
How much time does Defendant have to return the executed Waiver?
at least **30 days** from date P SENT **WAIVER**
104
If Defendant executes the waiver, how much time does D have to file the Answer?
**60 days** from the date which P SENT the **REQUEST**
105
What should Plaintiff do with the executed Waiver?
FILE executed waiver in fed court as proof of SUBSTITUTE SERVICE
106
Does the Defendant’s waiver of service also constitute a waiver of the D’s other rights?
No - does NOT waive right to object to other defects in the federal suit, such as lack of SMJ, lack of personal jurisdiction, or improper venue
107
Assuming that D lacks good cause to refuse to execute the waiver of service, what are the consequences of D’s refusal?
1. D must reimburse P for costs of service charged by **private process server**
2. D must pay a **reasonable attorneys fee** to P's attorney for preparing the motion for costs
3. D must reimburse P for court costs of **filing fee** for filing the motion
108
Jury Trial Demand under FRCP Rule 38
- P must serve D with **written demand for jury trial**
- no later than **14 days** from date when "last pleading directed to the issue is served" (AKA answer)
- P must **file demand with fed court** within reasonable time
109
FRCP Rule 12(b) Motion to Dismiss EVIDENCE
- judge CANNOT consider testimony and may ONLY **consider PLEADINGS** and accept **non-movant's allegations as TRUE**
*(if “matters OUTSIDE the pleadings are presented to and not excluded by the court,” then judge converts to Rule 56 MSJ and considers the testimony)*
110
Four Initial Disclosure Requirements and Penalties for Non-Disclosure (Rule 26)
1. info about **PEOPLE** (name/ address/ telephone no.) - (when those people are likely to have discoverable materials) + subjects of the info the discovering party may use to support its claims/ defenses UNLESS use solely for IMPEACHMENT
2. copy/description of all **documents/ ESI/ tangible things** that disclosing party has in its possession/ custody/ control and make use to support its claims/ defenses UNLESS use solely for impeachment
3. **insurance agreement** *(under which insurance may be liable to satisfy all or part of possible judgment in action or indemnify or reimburse payments made to satisfy judgment)*
4. **computation of each category of DAMAGES** *claimed by* the DISCLOSING party + documents/ evidentiary material on which each computation is based (including materials bearing on the nature and extent o injuries suffered)
111
Penalty for Failure to Comply with Initial Disclosure Obligations under Rule 26
party who failed to make required disclosure **PROHIBITED** from using the evidence at trial (EXCEPT for purposes of impeachment)
UNLESS party can show non-disclosure was either **substantially justified or harmless**
112
Work Product Doctrine
- fed court must protect impressions by a party's representative under Rule 26(3)(b)
- party may not discover documents **prepared in ANTICIPATION of litigation** by or for party/ party's rep/ party's attorney
113
Attorney-Client Privilege
- allows a party to withhold info otherwise discoverable by claiming the info is PRIVILEGED!
- **confidential communication made in furtherance of obtaining legal services**
- not intended to be disclosed to any persons other than the attorney
- may be required to describe the **nature of the content** in a way that does not reveal privileged info
114
Request for production of documents
under Rule 34, party is required to respond to RPD when:
1. when documents are described with **reasonable particularity** AND
2. documents are **discoverable under Rule 26 because they are RELEVANT, NONPRIVILIGED MATTER** relevant to any party's claim or defense and **proportional to the needs of the case** *(need not be admissible to be discoverable)* AND
3. documents are within party's **possession, custody, or control**
= party has DUTY make a **reasonable search of all sources LIKELY to contain requested documents**
115
Continuing Duty to Respond to Request for Production of Documents
party has a continuing duty under Rule 34 to **disclose requested material**
- if discover that initial production is incomplete, MUST PRODUCE (irrelevant if thinks other party won't want to use them)
116
FRCP Rule 26(f) Conference
Rule 26(d)(1) PROHIBITS a party from **seeking discovery** from any source BEFORE Rule 26(f) conference occurs
117
Interrogatories
- 25 max including subparts
- under Rule 33 must obtain **leave of court** to issue more IF larger number NOT STIPULATED by parties
118
Depositions
- only 10 may be noticed without leave of court
119
Requests for Admissions
Rule 30 does NOT limit the number of RFA
120
Subpoena for Witness Far from Court
Rule 45 requirements:
1. process serve is at least **18 years old** and is **NOT a party**
2. process server **tendered FEE for daily rate and mileage**
- witness can be compelled to attend and testify at a trial when the specified place is **within 100 mi** of where non-party: RESIDES/ is EMPLOYED/ REGULARLY TRANSACTS BUSINESS IN PERSON
121
Rule 50 Motion for Judgment as a Matter of Law
when P cannot establish D's liability
122
When can a Defendant make a Rule 50 JML Motion during the trial?
AFTER P has been **fully heard** on the issue of liability
can be made thereafter at ANY TIME BEFORE CASE IS **SUBMITTED TO JURY**
123
Standard for Rule 50 JML
grant if there is **NO legally sufficient evidentiary basis for a reasonable jury to find for P on issue of liability**
124
Preservation of Rule 50 JML
must make JML motion at least once during trial to preserve
125
Appealing Interlocutory Dismissal of Claims
cannot immediately appeal interlocutory orders
can only appeal final judgments under § 1291: appeal is only allowed after a **final judgment** is entered that **disposes of ALL claims and ALL parties**
EXCEPTION: P can ask court to **CERTIFY under Rule 54(b)** that there is **no just reason for delay** and to order clerk to enter a **final judgment as to claims/parties that have been disposed of**
126
FRCP Rule 62 Automatic Stay
automatic stay of judgment for **30 days** after entry of judgment
covers execution on judgement and proceedings to enforce it
127
Post-Trial Motions: Renewal of Rule 50 JML
if D made a Rule 50 motion once during trial, D may RENEW by filing it **within 28 DAYS** of the entry of judgment
- D must show that **NO REASONABLE JURY WOULD FIND FOR P**
128
Post-Trial Motions: Rule 59 Motion for New Trial
within **28 DAYS** of entry of judgment
- must show the verdict was against the **CLEAR WEIGHT** of the evidence
129
Requirement to Post Bond/ Security
after automatic stay expires:
- when judgement is for money
- a bond/ other security of sufficient size to satisfy the judgment + costs/interest/ damages for delay
- for a judgment “granting, dissolving, or denying an injunction,” the court may require a bond or other security that it considers sufficient to protect the adverse party/ court may exercise its discretion to “suspend, modify, restore, or grant an injunction” pending appeal
*ALWAYS STAY PENDING APPEAL*
130
Post-Trial Motion: Notice of Appeal
must file notice of appeal in federal district court within **30 DAYS** of entry of judgment
131
Separate Document Rule
Under FRAP Rule 4 and Rule 58, a notice of appeal must be filed within **30 days** of the entry of a final judgment in the docket by the court clerk on a **SEPARATE DOCUMENT**
if the separate document rule is violated, then the 30-day deadline for filing the notice of appeal will start to run on whichever date is earliest:
(1) the date of the clerk’s ultimate entry of the judgment in a separate document in the docket
OR
(2) the date when 150 days have expired after the date when the judgment was entered in a separate document in the docket
132
Final Judgment
a decision that ends the litigation on the merits by resolving all issues for all parties in the case
133
Factors Court Considers When Deciding if Case Should be Dismissed after Loss of SMJ in Joinder
= JOINDER NOT FEASIBLE
- Existence of prejudice
- Lessening or avoidance of prejudice
- Protective provisions in the judgment
- Shaping of relief
- Other measures
- Adequate judgment if suit proceeds
- Adequate remedy for plaintiffs if dismissed
