Flashcards
(252 cards)
1
Q
SMJ is also known as….
A
Federal Jurisdiction
2
Q
SMJ Definition
A
SMJ refers to the power of the court over the subject matter, kind, or nature of the lawsuit
3
Q
Can an objection to SMJ be waived by the parties?
A
NO, never!
4
Q
Can the parties consent to a court’s lack of SMJ?
A
NO, never!
5
Q
Is a court required to dismiss an action that lacks SMJ even if no party raises the objection?
A
YES.
6
Q
Federal courts are courts of __________________ jurisdiction, while state courts are courts of _____________ jurisdiction.
A
Limited; General
7
Q
2 Primary bases for SMJ:
A
(1) (Claim) Arising Under Federal Law
(2) Diversity Jurisdiction
8
Q
2 potential situations when a claim arises under federal law:
A
(1) The claim is created by federal law; or
(2) Created by state law, but depends on a substantial federal question
9
Q
Substantial federal questions only include issues that involve these 2 things:
A
(1) The US Constitution
(2) Federal Tax Law
*anything else or any other mention of a federal law doesn’t satisfy the “substantial federal question” requirement for SMJ arising under federal law.
10
Q
When does the “Well-Pled Complaint Rule” apply and what are the 3 requirements to satisfy it?
A
Applies when using the “arising under federal law” pathway to get SMJ.
3 Requirements:
(1) Federal issue must appear on the face of the P’s well-pled complaint
(2) As part of the P’s own claim; AND
(3) Not merely by way of a defense.
11
Q
Diversity Jurisdiction Definition/Rule:
A
Federal courts have SMJ over claims in which (1) there is complete diversity; and (2) the amount in controversy exceeds $75,000
12
Q
Complete Diversity Definition/Rule:
A
No single plaintiff may be a citizen of the same state as any single defendant
*A match across the “v” will destroy complete diversity
13
Q
Funny phrase from videos to remember complete diversity rule:
A
A match across the “v.” will destroy complete diversity
14
Q
2 Requirements for Diversity Jurisdiction:
A
(1) Complete Diversity (no single P is a citizen of the same state as any single D)
(2) Amount in controversy exceeds $75,000
15
Q
How is an INDIVIDUAL’s citizenship determined?
A
By DOMICILE.
An individual’s domicile is the state where the individual (i) resides; and (ii) intends to remain or to return if not currently present.
16
Q
An individual’s state of domicile is the state where:
A
(1) The individual resides; AND
(2) Intends to remain or to return if not currently present
17
Q
At what point in time is an individual’s domicile fixed?
A
When the lawsuit is FILED.
18
Q
What states are CORPORATION’s deemed to be citizens of?
A
Corporations can be citizens of two states:
(1) State of Incorporation
(2) State where principal place of business is located (ie, where it is headquartered)
19
Q
Which states are an UNICORPORATED ASSOCIATION deemed to be citizens of? (eg any organization other than a corporation such as partnerships, LPs, LLCs, etc.)
A
The states where each owner is domiciled. SO, every single owner courts as a separate domiciled party for diversity.
*Location of operations of HQ is irrelevant for diversity purposes
20
Q
May foreign citizens not admitted as a permanent resident in the US sue a US citizen under diversity jurisdiction?
A
YES. May sue a US citizen based on diversity and may be sued by a US citizen based on diversity.
21
Q
What state is a foreign citizen admitted as a permanent resident of a US state deemed to be a citizen of for diversity jurisdiction?
A
Deemed to be domiciled in her state of PERMANENT RESIDENCE.
*Treated as a US citizen for diversity purposes
22
Q
May a US citizen domiciled in a foreign country sue or be sued based on diversity jurisdiction?
A
NO, NEVER!
“Stateless Person” - Not a citizen of any state in the UC, so there will never be complete diversity
23
Q
What state counts for diversity purposes in lawsuits brought on behalf or (or against) dead people (decedents), minors, or incompetents?
A
The real party in interest counts for determining citizenship
- The decedent’s domicile controls (not the executor of the decedent’s estate)
- The minor’s domicile controls (not the guardian)
- The incompetent’s domicile controls (not the guardian)
24
Q
(T/F) Federal Question jurisdiction (for SMJ) requires that the amount in controversy exceeds $75,000.
A
FALSE.
The $75,000 amount-in-controversy requirement only applies to diversity jurisdiction
25
Aggregation Rules for the $75,000 Amount in Controversy Requirement for Diversity Jurisdiction:
(1) Can a single P aggregate all its claims against a single D?
(2) Can a single P aggregate all its claims against multiple Ds?
(3) Can multiple Ps aggregate their claims against a single D?
(1) Yes.
(2) No, unless those claims allege joint liability
(3) Generally not, unless the multiple Ps are enforcing a single title or right in which they have a common or undivided interest (eg, real property interest)
26
For the "amount in controversy" requirement for diversity jurisdiction, the amount ______________ matters, not the amount ultimately __________.
Alleged; Recovered
27
What is the one exception when a P who alleges over $75,000 and has complete diversity will be denied diversity jurisdiction?
If it appears to a LEGAL CERTAINTY that the P cannot recover an amount exceeding $75,000
28
2 State Law Issues that are excluded from Diversity Jurisdiction (even if the diversity jurisdiction requirements are met):
(1) Domestic Relations matters (eg, divorce, alimony, child custody);
(2) Probate Matters (eg, interpretation of a will)
29
How to identify a supplemental jurisdiction question on the bar exam?
Look for 2 pending claims before a federal court: one that satisfies federal question or diversity jurisdiction, and one that does not
30
Supplemental Jurisdiction Definition/Rule
A federal court with SMH over a claim has DISCRETION to hear another claim over which the court would not independently have jurisdiction if both claims arise from a COMMON NUCLEUS OF OPERATIVE FACT
31
One main exception to supplemental jurisdiction:
If the only primary jurisdictional basis is diversity, PLAINTIFFS cannot use supplemental jurisdiction to bring additional claims against NONDIVERSE parties.
Supplemental Jurisdiction still permitted for:
- Defendants bring claims against nondiverse parties
- Plaintiffs bringing claims against nondiverse parties if the primary basis is federal question jurisdiction
- Plaintiffs bringing claims against diverse parties, regardless of amount in controversy
32
Removal v. Remand
Removal: The act a D takes to move an action from state court to federal court
Remand: The process of moving the case from federal court back to state court.
33
2 requirements for defendants to remove an action from state court to the federal court that geographically embraces the state court:
(1) All defendants must consent to removal
(2) Notice of removal must be filed in federal court within 30 DAYS of the service of a state court complaint from which the possibility of removal could be ascertained.
34
Time limit for the plaintiffs to file a motion to remand an action back to state court:
Ps may file a motion to remand the action back to state court within 30 days of the filing of the notice of removal.
35
Even if no motion to remand has been filed, a federal court ___________ remand claims on its own initiative if there is no SMJ over those removed claims.
MUST
36
2 Removal Exceptions:
If the ONLY primary jurisdictional basis is diversity jurisdiction, there can be no removal if:
(1) Any single defendant is a citizen of the state where the action was filed (home state defendant rule)
(2) The notice of removal is filed more than one year after the original state court action was filed (does not apply if the P acted in bad faith to prevent the D from removing the action within one year)
37
(T/F) Removal based on federal question jurisdiction still depends on the well-pleaded complaint rule (i.e., that the federal question appears on the face of the well-pleaded complaint).
TRUE
38
3 signals that indicate a question is testing the Erie Doctrine:
(1) Case will arise in federal district court
(2) Federal court will have to resolve a nonfederal state law claim; and
(3) A conflict must exist between an applicable federal law and a contrary state law provision
39
Under the Erie Doctrine, when will Federal Law govern?
If the conflict between federal and state law involves a federal statute, a federal rule of civil procedure, a Federal Rule of Evidence, or the issue of trial by jury, then FEDERAL LAW governs.
40
Under the Erie Doctrine, when will State Law govern?
If the conflict does not involve a federal statute, a Federal Rule of Civil Procedure, a Federal Rule of Evidence, or the issue of trial by jury, then STATE LAW governs where the difference between federal and state law would alter the outcome of the case.
41
Explain the Full Faith and Credit Clause
Says that a valid judgement entered in state court must be recognized and enforced in every other federal or state court
42
Federal Courts are generally prohibited from enjoining these 3 types of actions:
(1) Pending state court actions
(2) State tax proceedings
(3) State criminal prosecutions
43
Federal courts may abstain from adjudicating any state court issue that involves either of these 2 things:
(1) the interpretation of state law or
(2) the constitutionality of a state statute
44
A federal court may ____________ its own action in federal court pending the outcome of a state court's action or interpretation of its own laws.
STAY
45
What is a TRO
An energency order entered by the court for up to 14 days (unless good cause exists or the adversary consents) to prevent irreparable harm and to preserve the status quo before a hearing can be held on a preliminary injunction
46
What is a Preliminary Injunction?
An injunction entered to maintain the status quo and to prevent irreparable harm before a trial on the merits can take place.
47
Is notice to the adverse party required for a TRO? What about for a preliminary injunction?
TRO: Generally, YES. But notice of a TRO can be exused if movant shows specific facts resulting in irreparable harm such that notice would not be possible despite diligence before the harm occurs. (Moving party's attorney must also certify in writing any efforts made to give notice and the reasons why it should not be required under the circumstances)
PRELIMINARY INJUNCTION: YES, always.
48
5 Steps of Analysis for a Personal Jurisdiction Question:
(1) Consent
(2) Presence
(3) Long-arm statute
(4) Minimum Contacts
(5) Fairness (availment/targeting, related lawsuit)
49
Personal Jurisdiction Definition/Rule:
PJ is the power of a federal court over the D's person or property.
50
2 requirements for a federal court to have PJ:
(1) The law of the forum grants PJ, AND
(2) The forum's law is constitutional
51
How to determine if a forum grants personal jurisdiction?
Absent a federal statute that expressly grants PJ, a federal court borrows the same PJ law of the state where it sits.
52
3 likely alternative bases for PJ:
Consent, Presence, Long-Arm Statute
53
How is PJ established by consent?
(1) Express Consent: Contract has a forum selection clause
(2) Implied Consent: D doesn't object to PJ in a proper and timely manner--operates as a waiver to challenge PJ
54
What is the time limit for the D to object to PJ?
Within 21 days of being served with process IN THE D's FIRST RESPONSE!!
If the D agrees to waive formal process, the time to respond is extended to:
- 60 days from the date that the request for waiver was sent (if D located in the US)
- 90 days from the date that the request for waiver was sent (if D is located in a foreign country)
55
How is PJ established by presence?
3 options:
(1) Service of Process - D must be actually and voluntarily physically present in the state while served with process
(2) Domicile
(3) "essentially at home" (for corporations)
56
A corporate D is always "essentially at home" in two states:
(1) State of its incorporation
(2) State of its principal place of business
57
What is a long-arm statute?
A state statute that allows a federal court to pull in out of state Ds who are not present and do not consent.
58
When can a long-arm statute be used to establish PJ?
Long arm statutes can provide for specific PJ over Ds who perform a specific act identified in the statute in the state from which the lawsuit derives.
59
2 due process requirements for PJ to be CONSTITUTIONAL: (analyze this after going through the 3 potential ways for PJ to be established)
(1) The nonresident D has sufficient minimum contacts with the forum state; and
(2) The maintenance of the action does not offend traditional notions of fair play and substantial justice.
60
How to establish that a D has sufficinent minimum contacts in a state?
D's contacts with the forum state must be purposeful and substantial, such that the D should reasonably anticipate (foresee) being taken to court there.
61
3 situations when the contacts of one D with the forum state will be imputed to another D for piurposes of determining PJ:
(1) To employer: Employee's/agent's actions imputed to employer if within scope of employment
(2) To Partnership: Partner's activity on behalf of a partnership can confer PJ over the partnership
(3) To parent corporation: If a subsidiary is the corporate parent's alter ego or is specifically acting as the corporate parent's agent, then its contacts may be imputed to the corporate parent.
62
4 factors courts consider when determining if PJ would offend fair play and substantial justice:
i) The interest of the forum state in adjudicating the matter;
ii) The burden on the defendant of appearing in the case;
iii) The interest of the judicial system in the efficient resolution of controversies; and
iv) The shared interests of the states in promoting common social policies.
63
Who is authorized to serve process in federal court?
Anyone who is over 18 and a nonparty
64
How long does an authorized process server have to serve process?
90 days from the date the lawsuit was filed
65
2 requirements for service of process to be proper:
(1) The method of service was proper under the federal rules; AND
(2) The method is constitutional under the due process clause
66
5 proper methods of service: (A WASP)
(1) Abode Service: Leave the process at D's last and usual abode with a person who resides there of suitable age and discretion
(2) Waiver: P mails the complaint to D with a request that the D waive formal methods of process
(3) Agent Service: Personal service on an agent who is authorized to accept it or who is a managing agent of D; or request the agent to waive formal process
(4) State Methods: Federal courts may adopt any availlable method of process (eg publication) allowed in the state where the federal court is located or where process is to be made
(5) Personal Service: In-hand, direct delivery by authorized process server to D
67
How to determine if the method of service of process is constitutional?
If it is REASONABLY CALCULATED to notify interested parties of the litigation.
No requirement that a person actually receive notice so long as the method is constitutional
All methods of service of process authorized by the Rules (A WASP) are consitutional
68
Venue is proper in a district where either:
(1) Any D resides if all Ds reside in that same state
(2) Any substantial part of the claim arose or the property at issue is located.
69
How can a challenge to improper venue be filed?
Must be filed by D in its FIRST RESPONSE to the complaint.
Failure to file in first response constitutes a waiver of the objection to venue
70
When will a motion to transfer venue be approved?
In the court's DISCRETION and must be to a district with PROPER VENUE (ie, meets one of the 2 requirements for proper venue)
If there is a forum-selection clause, there is a strong presumption that the choice of venue will be honored.
71
(T/F) If there is a forum-selection clause, there is a strong presumption that the choice of venue will be honored.
TRUE
72
What is the "fall-back" rule for when venue is proper if Ds and events are divided among multiple states and neither of the 2 main tests works?
The judicial district in which and D is subject to PJ is proper
73
When must a motion for lack of SMJ be filed?
Trick question, can be filed at any time
74
General requirement for the pleadings in a complaint
COmplaint must contain sufficient information (facts) to place the adversary on notice of claims that are PLAUSIBLE.
Claims involving fraud must be pled with particularity (more facts required)
75
What does Rule 11 do/say?
Under Rule 11, when any lawyer (or pro se party) presents any paper to a federal court, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
(1) the paper is not being brought for an improper purpose
(2) the contentions of law are warranted by existing law or a nonfrivolous argument to modify, extend or reverse existing law; AND
(3) the factual contentions have supporting evidence or will garner supporting evidence upon further discovery
76
What is the time limit to respond to a complaint?
Must file response (answer or pre-answer motion) within 21 days of service
(or 60/90 days if waived formal process)
77
Which 3 defenses must be filed in the D's first response, or else they are waived?
(1) Motion to dismiss for lack of PJ
(2) Motion challenging service of process
(3) Motion challenging venue
78
When must affirmative defenses be pled?
In the ANSWER, or it will be waived.
Assume that everything in the alleged complaint is true, but still win because there is an affirmative matter that defeats the claim
79
An ANSWER must fairly and precisely meet every allegation in the complaint by:
Admitting those that are true, denying those that are not true, and stating that there is insufficient information from which to admit or deny
80
If D files a pre-answer motion that is ultimately denied, how long does D have from notice of the denial to file an answer?
14 days
81
What is the Pleader's Right to Amend its complaint?
Pleader has the absolute right to amend pleading ONCE as of right up to 21 days after the service of the response to its pleading.
*If no responsive pleading is required, then a party may amend its pleading once as of right no later than 21 days after serving that pleading
82
If the 21-day window for a pleader to amend its complaint has expired, can the pleaders still potentially amend its complaint?
After time to amend as of right has expired, a party must seek the court's leave to amend. Amendment will be granted by the court freely when justice so requires and to serve the merits.
In other words, the only reason the court would deny an amendment is to avoid undue prejudice to the party opposing the amendment
83
What is the relation-back doctrine?
If a P files a complaint before the statute of limitations requires, but then, after the SoL lapses, they realize they forgot to add additional claims or have sued the wrong person and want to change their complaint even though the SoL has required.
Relevant rule depends on whether they want to add a new claim or a new party
84
Relation-Back Doctrine Rule to add a New Claim
Amendment adding new claim relates back to the date of a timely filed complaint if the new claim arises from the same transaction or occurence as the earlier, timely filed claims
85
Relation-Back Doctrine Rule to add a New Party
Amendment adding new parties relates back to the time of a timely filed complaint if:
(1) Claim against the new party derives from the same transaction or occurence as the earlier, timely filed claims; AND
(2) New party acquired knowledge that but for a mistake in name, the new party would have been sued within 90 days of the filing of the timely complaint.
86
What is joinder?
Ways to add claims and/or parties to a single lawsuit in federal court
87
What is the rule for CLAIM joinder?
Party may join as many claims as it has against an adversary regardless of whether there is any connection between those joined claims (assuming there is jurisdiction)
88
What is the rule for PARTY joinder?
Party may join parties to a lawsuit if the claims involving those parties derive from the same transaction or occurrence OR the same series of transactions or occurrences
89
Permissive Counterclaim
v.
Compulsory Counterclaim
Permissive: Counterclaim that does not derive from the same transaction or occurence as the P's claim
---D MAY file the claim as a counterclaim
Compulsory: Counterclaim that does derive from the same transaction or occurence as the P's claim
---D MUST file claim as counterclaim in the action filed against it and may not file claim in a later, separate independent action
90
Supplemental jurisdiction will always exist over _________ counterclaims
Compulsory
91
When can a party file a crossclaim against an existing co-party?
If that crossclaim derives from the same transaction or occurence that is the subject of the action.
92
(T/F) There will always be supplemental jurisdiction over a valid crossclaim
TRUE
93
Impleader Rule
D may bring new claim against a new third party if that new third party may be liable to the D for all (indemnity) or part (contribution) of the D's same liability to the P.
94
Interpleader Rule
Holder of a common fund (think, insurance company wanting to distribute life insurance proceeds) may file a lawsuit against all of the rival claimants to its common fund
95
Two different approaches to diversity for interpleader:
(1) Traditional Interpleader Diversity: Same requirements, complete diversity and > $75,000
(2) Statutory Interpleader Diversity: Minimal Diversity (any two rival claimants are from different states) and at least $500
96
Intervention Definition/Rule
Intervention is the act of a nonparty seeking to become a party in an ongoing lawsuit by filing a motion to intervene
97
Intervention As of Right
v.
Permissive Intervention
INTERVENTION AS OF RIGHT: Intervenor party has the right to intervene if it has an interest in the lawsuit which would be (i) adversely affected, and (ii) not protected by the parties.
PERMISSIVE INTERVENTION: Federal judge has discretion to permit intervention if the intervenor nonparty can show a commonality of issues between those in the ongoing lawsuit and those affecting the intervenor.
98
Indispensable Party Definition/Rule:
An indispensible party is a nonparty who MUST be joined to a lawsuit if its absense would be unduly prejudicial to any party's right to a full and fair adjudication
99
What happen is there is an indispensable party that cannot be joined to the action due to lack of SMJ over that nonparty's claims?
The court must decide in equity and good conscience whether to (1) continue without the nonparty and risk prejudice, OR (2) dismiss the entire lawsuit for failure to join an indispensable party.
*Generally, if there is an indispensable party but the court lacks SMJ, the best answer is that the court should dismiss the action for failure to join an indispensable party.
100
What is a Class Action? (start with this definition)
Action in which a named party represents a class of commonly situated, absent parties.
101
What is the name of the law that establishes alternative jurisdictional basis over class actions?
Class Action Fairness Act (CAFA)
102
CAFA establishes alternative jurisdiction over class actions if 3 requirements are met:
(1) 100 or more plaintiffs
(2) Amount in excess of $5M
(3) Any single P is from a different state than any single D
103
3 types of cases that CAFA generally EXCLUDES:
Cases against government entities, securities-related cases, and cases concerning the interal affairs or governance of a corporation
104
4 Requirements for Class Action Certification: (CAN'T)
and 2 additional requirements for Class Actions seeking MONETARY DAMAGES: (PS)
(1) Commonality: There must be a common issue of fact or law that pertain to the class
(2) Adequacy: Named party and class counsel must fairly and adequately represent the class
(3) Numerosity: Class must be so numerous that joinder would be impracticable (more than 40)
(4) Typicality: Claims of the named party must be typical of the class
(5) Predominance: Common issues must predominate over the individual issues pertaining to class members
(6) Superiority: The class action method must be superior way of resolving the many claims
105
2 Constitutional Requirements for class actions seeking money:
(1) Judge must order noticve that is reasonably calculated to apprise class members of the litigation, AND
(2) Afford class members the right to opt out from the class action
106
Steps of Class Action Analysis:
(1) Define
(2) Alternative jurisdictional requirements met under CAFA?
(3) Class action certification requirements met? Remember additional requirements for class actions seeking money
(4) Constitutional requirements met?
107
2 Important Points re Case Management:
A federal judge MUST hold a _____________ to establish a schedule for discovery production.
A federal judge MAY _______________ to establish pretrial orders for the conduct of the trial.
Discovery Conference; Conduct other conferences
108
2 requirements for material to be discoverable:
(1) The method of discovery was proper under the Federal Rules; and
(2) The materials sought are within the proper scope of discovery
109
Before any other discovery method may be used, each side, without any request, must promptly and automatically disclose 4 things:
(1) All potential supporting witnesses
(2) All relevant documents
(3) Damages computation
(4) Relevant insurance coverage
110
(T/F) Parties MUST meet to discuss a discovery plan.
TRUE
111
5 traditional discovery methods:
(1) Depositions
(2) Interrogatories
(3) Request for Physical or Mental Examination
(4) Request for Documents or Electronically Stored Information (ESI)
(5) Requests for Admission
112
____________ are the only discovery device that may be used on a nonparty
Depositions
113
How many depositions may each side conduct?
10 per side; 7 hours each
114
What are interrogatories?
Written questions served on a party, to be answered within 30 days from service under oath
115
How many interrogatories may each side serve?
25
116
How long does a party have to respond to interrogatories?
30 days from service
117
2 ways a party can respond to an interrogatory:
(1) Answer the questions in writing under oath
(2) Produce business records from which the answer could be ascertained
118
What is the only discovery method that requires a court order?
Requests for physical or mental examinations
None of the other traditional discovery methods require a court order. This one is INVASIVE
119
When will a court grant a request for physical or mental examination?
Granted upon good cause shown IF the condition being examined is in controversy
*Good Cause means that there is no less intrusive way to obtain that evidence
120
What is a request for admission?
Party may request that another party admit that certain facts are true or that certain documents are genuine
121
How long does a party have to respond to a request for admission?
Information will be deemed to be admitted unless denied within 30 days of its service
122
Requests for documents must be focues on documents within the ________, _________, or __________ of a party.
Possession, custody, or control
123
How long does a party have to respond to a request for documents or ESI?
30 days
124
How will a court analyze whether a party is required to produce ESI that is requested to be produced by the other party?
Generally, ESI need not be initially produced if the party can show that it would be unduly burden some to do so.
BUT, court can order production of the ESI if the burdens of production are outweighed by the benefits of production
125
What is the Duty to Supplement?
Each party must automatically update or supplement prior disclosures within a reasonable time of discovering new information
126
How many days before trial does a party have to disclose its witnesses?
EXPERT WITNESSES: 90 days before trial *(30 days if the expert report is solely intended to contradict or rebut the opposing party's expert evidence on the same matter)
LAY WITNESSES: 30 days before trial
127
3 requirements for material to be within the proper scope of discovery:
(1) Relevant: Broad, liberal relevance to any part of any claim or defense
(2) Proportionate: Burden of discovery must be outweighed by the benefits of discovery
(3) Not Privileged: Material isn't privileged by the work product doctrine
128
Does material need to be admissible at trial in order to be discoverable?
NO. Material can meet the "relevant" requirement to fall within the scope of discovery, even if material isn't admissible at trial
129
2 types of work product that are privileged and not discoverable:
(1) Attorney's Mental Impressions: Always privileged and NEVER discoverable, in any form.
(2) All other forms of work product: Not discoverable unless there is a showing of substantial need such that an undue hardship would result without the work product (ie, no other way of obtaining information)
130
Work product that doesn't contain an attorney's mental impressions are only discoverable IF:
There is no other way to obtain the information
("Unless there is a showing of substantial need such that an undue hardship would result without the work product")
131
3 situations when a party may be subject to Discovery Sanctions:
(1) Failure to Respond to a Discovery Request
(2) Failure to make automatic disclosure
(3) Violation of a Court order
132
When would a party be sanctioned for failing to respond to a discovery request?
After certifying a good faith attempt to obtain discovery, the requesting party may move to compel discovery AND receive costs and fees incurred in obtaining that discovery
133
What is the punishment/sanction for failing to make an automatic disclosure?
The party may not use that information or evidence in any hearing UNLESS can show substantial justification for failure to disclose
134
What is the punishment/sanction for violating a court order?
Court can bar presentation of claim or defense, or evidence thereof.
135
4 motions to be aware of:
Motion for Summary Judgement
Motion for Judgement as a Matter of Law (JMOL)
Renewed Motion for Judgment as a Matter of Law
Motion for a New Trial
136
Timeframe to file a motion for SJ:
May be filed up to 30 days after the close of discovery
137
A court will grant a motion for SJ if:
Party opposing the motion fails to present sufficient admissible evidence demonstrating a genuine issue of material fact for trial; and judgement if proper as a matter of law.
138
Who has the burden of persuasion in a motion for SJ?
MOVANT has initial burden of persuasion
BUT proper timely motion SHIFTS the burden to nonmoving party to produce proper evidence from which a jury could find in its favor by the relevant burden of proof at trial
139
If the materials cited by a nonmoving party trying to meet its burden of proof in response to a motion for SJ are not presented in a form that is admissible at trial, must the court consider them?
Yes, if the facts contained in the submissions are admissible.
140
Motion for JMOL is also called:
Motion for a directed verdict
141
Timeframe to bring a motion for JMOL:
May be filed after the adversary has been heard (ie, rested its case), but before the jury begins deliberation
142
A court will only grant a motion for JMOL if:
There is a legally insufficient evidentiary basis; from which a reasonable jury could find in favor of the nonmoving party
143
(T/F) Courts very rarely grant a motion for JMOL.
TRUE
144
Timefrome for a party to make a renewed motion for JMOL:
If the party moved for JMOL before the jury began deliberations (and was denied), party may renew its motion for JMOL within 28 DAYS of the judgment
145
Is the standard for a court to grant a renewed motion for JMOL the same or different from the standard for a court to grant an initial motion for JMOL
The SAME
146
Timeframe to file a motion for a new trial:
28 days after judgment
147
Court will grant a motion for a new trial in its DISCRETION in two situations:
(1) There were errors at trial affecting the parties' substantial trial rights; or
(2) The verdict was merely against the manifest weight of the evidence
148
6 examples of reasons that have been held to justify a new trial:
(1) Error at trial that renders the judgment unfair
(2) Newly discovered evidence that existed at the time of trial was excusably overlooked and would likely have altered the outcome of the trial
(3) Prejudicial misconduct of counsel, a party, the judge, or a juror
(4) A verdict that is against the clear weight of the evidence
(5) A verdict that is based on false evidene
(6) A verdict that is excessive or inadequate
149
Timeframe in which a party must file a written demand for trial by jury:
Within 14 days of service of the last complaint that contains a trial by jury claim OR the last answer that responds to a trial by jury claim.
150
(T/F) Failure to make a timely demand for trial by jury results in waiver of the right to trial by jury
TRUE
151
In federal court, the jury must have between _____ and _____ members
6 and 12
152
(T/F) In fedearl court, the verdict of a jury trial must be unanimous.
TRUE
153
What is a peremptory challenge?
Each party gets 3 peremptory challenges, which is a challenge that can be made for any cause (except race or gender)
154
A party can challenge a juror for cause in two main situations:
(1) Juror lied during voir dire; or
(2) Cannot be impartial because they have a familial or financil interest in one of the parties
155
What is an Offer of Judgment
Essentially a formal offer to settle the case
156
Timeframe for the D to serve Ps with a formal offer of judgment
At least 14 days before trial
157
After P receives a formal offer of judgment, how long do they have to accept the offer of judgment?
14 days
158
What happens if a P fails to accept an offer of judgment?
They will be sanctioned by incurring the costs of the D from that date of refusal UNLESS P does better than the offer at trial
159
What is a default judgment?
Ds are in default if they fail to respond to the complaint in a timely manner.
Within 21 days of service (or 60/90 if they waive formal process)
160
What is the procedure for seeking Default Judgment?
Once a default is entered against a party, the P may seek a default judgment.
IF DAMAGES ARE A SUM CERTAIN: The P may request the clerk to enter judgement in that amount by filing an affidavit showing the amount due.
IF DAMAGES ARE UNCERTAIN: The P must apply for default and prove damages at a "prove up" hearing of which the D must have 7 days notice
161
How much notice must a D have of a "prove up" hearing for a default judgment?
7 days notice
162
How can a D file a motion to Set Aside an Entry of Default?
Within a reasonable time of the entry of default, the D may file a motion to set aside the default.
Motion will be LIBERALLY GRANTED for GOOD CAUSE shown.
163
Time limit to file a motion for relief of judgment
Certain grounds must be filed within a reasonable time not exceeding 1 year after the judgment has been entered
164
3 grounds for relief where a motion for relief from a judgment will be granted:
(1) Merits: There was merit to a claim or defense, but the claim lost due to mistake, inadvertence, surprise, excusable neglect, or judge's error of law
(2) Equity: Inequitable to let the judgment stand in the wake of fraud, misrepresentation, or misconduct by an opposing party
(3) New Facts: New facts have come to light since the judgment that cast doubt on that judgment and could not be earlier discovered with reasonable diligence.
165
Claim preclusion is also called
Res Judicata
166
The doctrine of claim preclusion bars successive litigation of an identical claim in a subsequent action when:
(1) There is a valid final judgment on the merits; and
(2) The original and subsequently brought claims are sufficiently identical
167
(T/F) A claim or defense must actually be raised in the earlier action to be barred in a later action under res judicata.
FALSE. If the claim or defense could have been raised in the earlier action then it will be precluded in the later action.
168
4 main examples of a judgment on the meritsL
(1) Judgments entered after a full trial
(2) Summary judgments
(3) Judgments as a matter of law
(4) Default judgments when the court has SMJ and PJ over the parties
169
Is a voluntary dismissal with or without prejudice?
WITHOUT. Unless the notice of dismissal states otherwise
170
Is a dismissal on jurisdictional grounds with or without prejudice?
WITHOUT becuase a court that has no jurisdiction cannot ajudicate a matter on the merits
171
If a federal court with diversity jurisdiction over an action issues a judgment, does the state court have to give that judgment the same claim preclusion effect that the judgment would have been given by the court of the state where the federal court was located?
YES
172
3 factors that are considered in determining what constitutes a transaction or series of transactions (to determine if a claim is sufficiently identical)
(1) Whether the facts are related in time, space, origin, or motivation;
(2) Whether the facts form a convnient trial unit; and
(3) Whether treating the facts as a unit conforms to the parties expectations
173
When should offensive use of collateral estoppel be allowed?
Generally allowed, but if the P could easily have joined in the earlier action or if offensive estoppel is found to be unfair to a D, then the judge should not allow it.
174
The doctrine of issue preclusion (collateral estoppel) precludes:
The relitigation of issues of fact or law when the same issue was already litigated and necessarily determined in an earlier, final judgment
175
4 requirements for an issue to be precluded under issue preclusion:
(1) Same Issue
(2) Actually Litigated
(3) Final, Valid Judgment
(4) Essential to the Judgment
176
Are issues determined in a criminal prosecution preclusive in a civil action?
FOR PROSECUTION: Issues criminally determined in favor of the prosecution are preclusive against the D based on similar conduct
FOR D: Issues determined in favor of D are not preclusive against D based on the same conduct because the P in the civil action was not a party to the criminal prosecution
177
Main way issue preclusion is different from claim preclusion:
Unlike claim preclusion, issue preclusion does not require strict mutuality of parties; it requires only that the party against whom the issue will be precluded was a party to the original action.
178
When does an appellate court have appellate jurisdiction?
Over final orders entered by lower courts
*Final order leaves nothing left to be done in the lower court
179
Can a partial final order be appealed?
Yes, may be appealed immediately, IF the lower court finds that there is no just reason for delay
180
What is an interlocutory order?
A trial court order that is typically considered nonfinal because it is issued while a case is ongoing (eg, denial of SJ, motion to dismiss, or the granting of a new trial motion)
181
An interlocutory order may be appealed if both the LOWER COURT and APPELLATE COURT find:
(1) Doubt about whether the order was correct
(2) On a controlling issue of law
(3) such that appellate review would materially advance the litigation
182
What is a petition for a writ of mandamus?
A request that a higher court direct a lower court to do or refrain from doing something because of exceptional circumstances.
183
(T/F) A court of appeals has the discretion to permit an appeal from a district court order granting or denying class action certification.
TRUE.
If the appeal is permitted, it does not stay proceedings in the district court unless the court of appeals so orders.
184
Time limitation to file notice of appeal:
Within 30 days of the entry of the judgment or an appealable interlocutory order
185
In which court must a notice of appeal be filed?
The LOWER COURT
186
What is the court of appeals standard of review for Pure questions of Law?
De Novo Standard of review with no deference to lower court
187
What is the court of appeals standard of review for questions of fact?
May set aside judge's factual findings if clearly erroneous with deference given to lower court.
188
What is the court of appeals standard of review for questions of case management (eg, orders involving amendments to pleadings, discovery requests, scheduling matters)?
Reversed only if ABUSE OF DISCRETION with great deference given to lower court
189
2 ways a party can preserve for appeal a challenge to the sufficiency of evidence supporting a jury verdict:
(1) Properly renew a motion for directed verdict with a motion for judgment notwithstanding the verdict under Rule 50(b); or
(2) Raise a motion for a new trial
*If a party fails to do so, there is no basis for review of the challenge to the overall sufficiency of the evidence in a court of appeals, and appellate review will instead be limited to any specific claims of error that were properly reserved
190
A motion for relief from judgement generally must be filed within a reasonable time, not to exceed one year. However, a motion based on the following 5 grounds can be filed outside of one year"
(1) A judgement is void
(2) A judgement has been satisfied, released, or discharged
(3) A judgement was based on a judgement that was reversed or vacated
(4) Applying the judgement prospectively is no longer equitable; or
(5) For any other reason that justifies relief
191
When does a Bulge Provision apply to give Personal Jurisdiction?
When a party is:
(1) Added to the suit through impleader or required joinder AND
(2) Served with process within 100 miles of the federal court where the suit is pending
192
The home-court advantage rule prohibits removal from state to federal court when:
(1) the federal court's SMJ arises from diversity jurisdiction AND
(2) A D is a citizen of the state where the case was filed
193
Personal jurisdiction is always focused on the ____________.
Defendant.
Because the P consents to PJ by filing the suit in that court
194
General Jurisdiction
v.
Specific Jurisdiction
General jurisdiction – when the defendant has continuous and systematic contacts with the forum state that are so substantial that the defendant is essentially "at home" (i.e., where a defendant is domiciled) or
Specific jurisdiction – when the plaintiff's claim arises from the defendant's minimum contacts with the forum state and the exercise of jurisdiction would comply with notions of fair play and substantial justice.
195
Does failure to file proof of service of process affect the validity of the service?
NO.
BUT a P must provide proof of service of process to the court when service was properly made in the US and not waived by the D.
196
Venue is proper in any federal district where:
(1) any defendant resides, as long as all defendants reside in the same state,
(2) a substantial part of the events occurred or a substantial part of the property at issue is located, or
(3) any defendant is subject to the court's personal jurisdiction (if the first two provisions do not apply).
197
4 things an answer must include, otherwise those items will be waived
(1) Admissions and Denials
(2) Motions that have not been waived
(3) Affirmative Defenses
(4) Compulsory Counterclaims
198
When does a federal court have SMJ over a class action under diversity? (not under the CAFA)
When the NAMED opposing parties are diverse and the amount in controversy for any NAMED P's claim exceeds $75,000
199
When considering whether to grant a motion for JMOL, the district court must:
(1) View the evidence and draw all reasonable inferences in the light most favorable to the nonmovant
(2) Disregard any evidence favorable to the movant that the jury is not required to believe and
(3) Not consider the credibility of witnesses or evaluate the weight of evidence
200
Offensive Collateral Estoppel
v.
Defensive Collateral Estoppel
OFFENSIVE: P in a second action asserts to establish issue from first action
DEFENSIVE: D in second action asserts to avoid relitigating issue from first action.
201
4 situations when offensive collateral estoppel is not permitted:
(1) P could have easily joined first action
(2) D had little incentive to vigorously defend in first action
(3) Second acction affords procedural opportunities unavailable in first action, or
(4) Inconsistent findings on issue exist
202
3 situations when minimal diversity is sufficient (complete diversity not needed)
(1) Federal Interpleader Act (statutory interpleader actions)
(2) CAFA (class actions with at least 100 class members and claims worth more than $5M)
(3) Interestate mass torts if at least 75 natural persons have died in one accident and the Ps and Ds are from many different states (eg, airplane crash)
203
3 ways a D can consent to personal jurisdiction:
(1) Expressly by contract, by stipulation, or by authorizing an agent
(2) Impliedly through conduct
(3) Voluntarily by appearing in court, unless the D appears to object to jurisdiction
204
In Rem Jurisdiction
v.
Quasi In Rem Jurisdiction
In Rem: Gives a court authority to determine issues concerning rights to real and personal property.
Quasi In Rem: Determines only the interests of the parties to the action regarding property located in the forum state (eg, lien foreclosure, quiet title action)
205
Requirements for In Rem Jurisdiction
A suit can be brought against property if:
(1) The property is located in the forum state and
(2) The suit will settle all rights and claims to the property
206
1 Requirement for Quasi In Rem Jurisdiction:
The D whose property is subject to the judgment generally must have sufficient minimum contacts with the forum state to justify the exercise of PJ over the matter
207
Venue in a federal civil action is proper in any of the following judicial districts (3 rules and a fallback)
(1) Where any D resides, if all Ds reside in the same state in which the D is located
(2) Where a substantial part of the events or omissions on the claim is based occurred
(3) Where a substantial part of the property that is subject to the action is located
Fallback: If Venue can't be established in a district on any of the above grounds, where any D is subject to PJ with respect to the action
208
If venue is improper, what must a court do?
The court must dismiss the case or transfer it to a proper district if it is in the interest of justice
209
2 different districts that a case can be transferred to if venue is improper:
(1) Any district where the case might have originally been brought
(2) Any district to which all parties consent
210
Under the doctrine of forum non conveniens, a federal court can dismiss an action, even when PJ and venue are proper, if the court finds 2 things:
(1) The forum would be too inconvenient for the parties and witnesses AND
(2) Another more convenient venue in a state or foreign court is available
211
What is a Motion for Judgement on the Pleadings?
After the pleadings are closed, a motion for judgment on the pleadings allows a court to dispose of a case when the material facts are not in dispute AND a judgment on the merits can be achieved based solely on the content of the pleadings
212
What is a reply and when is it due?
A reply is a response by the P to the D's answer that is due 21 days after being served with a court order to reply
213
If a party destroyed or failed to preserve ESI, and acted with intent to deprive another party of the information, then the court may: (3 options)
(1) Instruct the jury to presume that the information was unfavorable to the party
(2) Dismiss the action
(3) Enter a default judgment
214
What is the standard for granting a motion for SJ?
No genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law
*The evidence must be viewed in the light most favorable to the nonmovant and all doubts must be resolved in the nonmovants favor
215
5 common 14 day deadlines:
(1) File answer after a pre-answer motion is denied
(2) File third-party complaint without leave of court agter the original answer is served
(3) Respond to an amended pleading
(4) Submit proposed discovery plan and initial disclosures after the initial planning conference
(5) Demand a jury trial after the last pleading is served
216
4 common 21 day deadlines
(1) Serve pre-answer motion or answer after service of the complaint, counterclaim, or crossclaim
(2) Amend pleading as a matter of right after the pleading was served
(3) Hold the initial planning conference before the scheduling order is due
(4) Serve reply to an answer
217
4 common 28-day deadlines:
MOST POST-TRIAL FILINGS
(1) Renew motion for JMOL
(2) Move for a new trial
(3) Move to alter or amend a judgment
(4) Move for amended findings after a final judgment
218
6 common 30-day deadlines:
MOST DISCOVERY DEADLINES
(1) File a notice of removal after receipt of the initial pleading
(2) Move to remand after the notice of removal is filed
(3) Submit pretrial disclosures before trial
(4) Respond to interrogatories, requests for production, and requests for admission
(5) Move for SJ after the close of discovery
(6) File a notice of appeal after entry of judgment
219
2 common 60-day deadlines
(1) File answer or pre-answer motion after service of process in the US is WAIVED
(2) Serve answer after service of process on US agency or employee
220
3 common 90-day deadlines:
(1) Serve process after the complaint is filed
(2) File answer or pre-answer motion after service of process in a foreign country is waived
(3) Disclose expert witness materials before trial
221
(T/F) A proposed settlement of a federal class action must be approved by the court to be valid.
TRUE
222
4 requirements for class action settlement, compromise, or voluntary dismissal:
(1) Court provides reasonable notice of proposal to all class members
(2) Parties file statement identifying agreements made in connection with proposal
(3) Hearing and opportunity for members to object
(4) Court finding that proposal is fair, reasonable, and adequate
223
3 districts where venue is proper for a federal official sued in official capacity
(1) Where D resides
(2) Where substantial events occurred or property is located
(3) Where P resides if no real property is involved in suit
224
2 districts where venue is proper for a foreign government
(1) Where subtantial events occurred or property is located
(2) In federal district court of Washington, DC
225
The court has two option if polling of a jury reveals that the verdict was not unanimous:
(1) Order a new trial
(2) Direct the jury to deliberate further
226
In diversity actions, state law controls ________ issues and federal law controls __________ issues.
State; Federal
*When a claim arises under federal-question jurisdiction, the court must apply federal law to procedural and substantive issues. But when a claim arises under diversity jurisdiction, the court must apply federal procedural law and state substantive law.
227
What is a preliminary injunction?
A temporary court order that commands or prohibits certain actions while the case is pending before the court.
IMPORTANT: This form of equitable relief is extraordinary and granted in LIMITED circumstances since it is issued prior to a full hearing on the merits of the case.
228
A federal court can only grant a preliminary injunction if 4 requirements are met:
(1) The movant is likely to succeed on the merits
(2) The movant is likely to suffer irreparable harm (ie, an injury that cannot be compensated by monetary damages) in the absense of relief
(3) The balance of equities is in the movant's favor (ie, the harm to the movant absent an injunction outweighs the harm an injunction would cause to the nonomovant) AND
(4) The injunction is in the best interests of the public (eg, enforcement of contractual rights and obligations protects the freedom to contract)
*IMPORTANT: This form of equitable relief is extraordinary and granted in LIMITED circumstances since it is issued prior to a full hearing on the merits of the case.
229
Generally, subpoena's for depositions can be conducted without the court's permission or the other party's permission. But what are the 3 situations when permission is needed from either the court or the other party to subpoena someone for a deposition?
(1) The deposition exceeds the 10-deposition limit
(2) The deposition is sought before the parties' initial planning conference*, OR
(3) The deponent was already deposed in the action
*Leave of court or the parties' stipulation is not required for an oral deposition conducted before the initial planning conference if the deposing party certifies (and provides supporting facts) in the deposition notice that the deponent is expected to leave the U.S and be unavailable for examination.
230
9 exceptions to the final judgement rule that allow an immediate appeal of certain orders:
(In Certain Circumstances, An Appeal Can Be Made Prematurely)
(1) Injunction
(2) Certification by district court
(3) Class action certification
(4) Appointment of receiver
(5) Admiralty cases
(6) Collateral-order doctrine
(7) Bankruptcy cases (certain orders)
(8) Mandamus (petition for writ)
(9) Patent-infringement order (accounting left)
231
A counterclaim is compulsory and must be asserted in a D's answer if 2 conditions are metL
(1) Arises from the same transaction or occurrence as the P's claims AND
(2) Does not require adding parties over whom the court cannot aquire jurisdiction
232
2 conditions for a claim to be deemed identical for claim proclusion purposes:
(1) Claims arise from the same transaction, occurrence, or series
(2) Claims could have been raised in the first action
233
Is a state law regarding a statute of limitations substantive or procedural?
SUBSTANTIVE under Erie!
234
3 tricky examples of state laws that are substantive:
(1) State laws that alter the calculation of damages
(2) State law regarding a statute of limitations
(3) State laws that create evidentiary privileges
235
Under the Federal Rules of Civil Procedure, multiple persons may join in one action as plaintiffs if:
(1) They assert any right to relief jointly, severally, or with respect to or arising out of the same transaction AND
(2) A question of law or fact that is common to all Ps or Ds will arise
236
If a D makes a new allegation against P in his answer, but P does not make any reply, is P deemed to have admitted these allegations by not replying?
Depends if the court ordered P to reply.
If the court ordered a reply, and P didn't deny in the reply, then the allegation is deemed admitted by the P
If no reply is ordered, then allegations in the answer are deemed denied by the P.
237
Is a final judgment relating to fewer than all claims/parties immediately appealable (ex: a third party impleader is dismissed by the court after a MTD is granted)
Generally immediately appealable if the court expressly determines there is no justifiable reason for delay.
Unless this express determination is made, any court order that disposes of those claims or parties is not immediately appealable and may be revised before final judgment is entered on all claims or parties.
238
Is the appellate court required to hear an appeal if the issue is immediately appealable?
No. Entertaining an appeal is at the discretion of the appellate court, so it is not REQUIRED to hear the appeal.
239
State law is outcome determinative if failure to apply state law would result in either:
(1) Forum-Shopping: Litigants will be encouraged to sue in federal court to take advantage of benefits not afforded in state court, OR
(2) Inequitable Administration of the Laws: The application of substantially different rules in federal or state court would cause unfair outcomes
240
Choice of Law in Diversity Cases Flowchart
241
Does a judge need to consult with the parties before excusing a juror for good cause?
NO.
242
A juror must participate in a verdict unless:
The juror is excused by the court (judge) for good cause during trial or after jury deliberations have begun.
Good cause exists when the juror has an illness or family emergency or has committed juror misconduct that might cause a mistrial.
243
A court can impose sanctions, including an order to pay the opposing party's attorney's fees, on a law firm (default), attorney, or party for violating one of the provisions of FRCP 11(b).
Sanction proceedings can be initiated in two ways:
(1) By a party's motion – which requires the party to serve the motion on the alleged violator but refrain from filing it for 21 days after serving it to allow any violation to be corrected (i.e., safe-harbor rule) or
(2) On the court's own initiative (i.e., sua sponte) – which requires the judge to issue an order to show cause to the alleged violator.
244
To initiate impleader, the D must file a third party complaint (1) within __________ of serving his/her original answer, or (2) _______________
(1) within 14 days
(2) after this deadline, WITH THE COURT'S PERMISSION
245
Can a parties agree to a jury of less than 6 members?
Yes.
A jury verdict must be unanimous and returned by a jury of at least 6 (but no more than 12) members unless the parties stipulate otherwise.
246
When can a district court correct a clerical mistake or a mistake arising from an oversight or omission in a judgement order or other part of the record?
Depends on whether an appeal from the judgement or order is docketed.
The court may do so on its own initiative or pursuant to a party's motion BEFORE an appeal from the judgment or order is docketed.
But AFTER an appeal is docketed, the district court can correct the mistake only with the appellate court's leave (i.e., permission).
247
If an appellate court permits an immediate appeal about a class action certification, what is the effect on the district court proceedings? Will the district court proceedings be stayed?
If the appellate court permits the appeal, the district court proceedings are stayed pending the appeal ONLY when ordered by the district court OR the appellate court
248
A court may not impose monetary sanctions under Rule 11 on its own initiative without issuing a _____________
Show-cause order
249
Generally, the defendant in any civil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed as long as:
The civil action is within the subject-matter jurisdiction of a US District Court. (Diversity of Federal-Question Jurisdiction)
250
Generally, if the venue of an action is transferred when the original venue is proper, then the court to which the action is transferred must apply which state's law?
Generally, the transferee state must apply the law of the state of the transferor court.
*However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.
251
Generally, if the venue of an action is transferred when the original venue is proper, then the court to which the action is transferred must apply the transferor state's law. What is the exception to this?
When venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located.
So usually the transferor state's law would still apply, but if transferred because of a valid forum selection clause, then the law of the transferee state is applied.
252
