Other people's outlines Flashcards
(111 cards)
1
Q
Legal claim involves
A
Substantive right + remedial right.
2
Q
Examples of substantive rights
A
14th amendment due process (state deprives person…), 5th amendment due process, 15 USC 1 (prohibits conspiring to restrain trade, Bell Atlantic v Twombly), §106(3) of cpyright act giving creator the exclusive right to distribute the film (Zuk)
3
Q
Examples of remedial rights
A
42 USC 1983 (right to go to a court to seek relief for state officials violating constitutional rights.
Implied 5th amendment remedial right
15 USC 15 (treble damages) and 15 USC 26 (injunctive relief) from Bell Atlantic v Twombly, 505 of the copyright act (damages and injunctive relief) from Zuk
4
Q
preliminary injunction
A
Granted at the beginning of a lawsuit in order to prevent irreparable harm to P during the lawsuit and auto dissolves at the end.
5
Q
Preliminary injunction requirements
A
(only if 1 and 2 are met, balance 3 and 4)
1. Significant risk of irreparable harm and imminent injury to P during the lawsuit.
2. No adequate remedy at law
3. Balance of equities
4. Plaintiff’s likelihood of succes on the merits.
3 and 4 are a sliding scale: we want to minimize errors.
If P likelihood of success low, then harm in wrongly denying has to be very high.
If P likelihood of success high, then harm in wrongly denying can be less.
6
Q
Error in preliminary injunction case
A
Denying a preliminary injunction if P wins the case OR granting a preliminary injunction if D wins the case.
7
Q
X
A
X
8
Q
65(c) security for preliminary injunction
A
The court can issue a prelminary injunction only if the movant gives a security that the court considers proper to pay the costs and damages sustained if the wrong party is enjoined or restrained (unless movant is the US/officers/agencies).
9
Q
65(d) Every order granting an injunction must
A
1) state the reasons why it was issued, and 2) state its terms specifically, and 3) describe in reasonable detail (and not by referring to the complaint or other document) the act(s) restrained or required.
10
Q
Permanent injunction requirements
A
Only if 1 and 2 are met, balance 3 and 4
1. Significant risk of future irreparable harm and imminent injury to P.
2) No adequate remedy at law
3) balance of private and public intersts
4) Court’s administrative burden of enforcing it.
11
Q
If D disobeys an injunction then P can
A
motion for contempt.
12
Q
An injunction binds the following who receive notice of it
A
The parties, the parties officers/agents/servants/employees/attorneys, others who particpate with the parties or officers, etc.
13
Q
Declaratory relief
A
Would be defendant sues the would be plaintiff and goes to court to get the judge to declare that would-be D’s actions are lawful.
14
Q
Requirements for declaratory relief
A
1) Live dispute between parties (threat of litigation, ceae and desist letter)
2) A good reason to allow declaratory relief (ex. threat of a lawsuit is crippling D).
15
Q
28 USC 2201 creation of a remdy for declaratory relief
A
Courts “may declare the rights and other legal relations of any interested party seeking such declarations, whether or not further relief is or could be sought.” The declaration has the effect of a final judgment.
16
Q
28 USC 2202 further relief declaratory judgment
A
After the court has declared a party’s rights, they can grant further necessary or proper relief based on a declaratory judgment.
17
Q
How is settlment amount determined?
A
Amount depends on what parties believe a court would award at trial.
D wants to buy P’s right to go to trial.
For a settlement to be possible, D must value avoiding a trial equal to or more than P’s value of going to trial.
P’s minimum must be less than D’s maximum
18
Q
Settlement range
A
The space between P’s minimum and D’s maximum.
19
Q
P’s minimum settlement
A
Expected gain from trial - litigation costs.
20
Q
D’s maximum settlement
A
Expected loss from trial + litigation cots
21
Q
Variables in determiing P’s minimum and D’s maximum
A
1) probability that P wins (d loses), 2) expected trial award, 3) litigation costs (on both sides).
22
Q
pWhat can cause divergent probabilities on who will win?
A
One party having info the other doesn’t. Mutual optimism.
23
Q
One way fee shifting
A
If P wins, D pays P’s fees. Ex. 42 USC 1988 in 1983 cases.
24
Q
Two way fee shifting
A
If P wins D pays fees and if D wins P pays fees. Ex. Copyright act.
25
X
X
26
FRCP 8(d) can you plead inconsistent claims?
Allegations must be simple, concise, and dirct. A party can allege inconsistant claims or defenses.
27
FRCP 10 format of pleading
(a) Caption with courts name, title (party names), file number (C.A. No. ____) and a Rule (7)(a) designation
(b) Claims or defenses must be in numbered paragraphs.
28
FRCP 8(e) in pleading do judgs assume allegeations are true?
To "do justice' the judge accepts all allegations as true.
29
FRCP 3 when does a case start
Filing a complaint starts a lawsuit
30
FRCP 8(a) contents of a complaint
(1) short and plain statement of the grounds for the court's jurisdiction
AND (2) "short and plain" statement showing the pleader is entitled to relief, AND (3) a demand for relief sought.
31
FRCP 12(a) timing for responses
Answer: Within 21 days after being served unless D waived service, then 60 days after the waiver was sent (or 90 days if sent to D outside a US judicial district).
Answer to counterclaim or crossclaim: 21 days after being served with counterclaim or crossclaim.
Reply to answer: 21 days after being served with an order to reply
32
FRCP 8(b) the answer
Must state in short and plain terms its defenses to each claim asserted against it and admit/deny each allegation
Can specifically deny some allegations and admit others
If they don't kow if an allegation is true, they have to state that and it's effectively a denial
If the allegation isn't denied and a responsive pleading is required, the allegation is admitted
33
False negatives
Meritorious plaintiffs screened out
34
False positive
Meritless plaintiffs not screened out.
35
How does stricter pleading increase false negatives
Suits aren't filed or are dismissed because P can't get the info that they need to plead.
36
How does strict pleading decrease false positives?
Fewer meritless claims surivive pleading.
37
How do Rule 11 sanctions increase false negatives
Lawyers fear sanctions and won't bring riskier cases
38
How do Rule 11 sanctions decrease false positives
Plaintiff's less likely to file meritless cases due to fear of sanctions.
39
FRCP 18 how many claims can you bring against a single D?
(a) allows a single plaintiff to join any and all claims it has against a single defendant (even totally unrelated).
40
FRCP 21 Misjoinder and nonjioinder of parties
A court can add or drop a party or sever a claim against a party on its own at any time
Misjoinder of partis isn't a ground for dismissing an action
41
FRCP 20 permissive joinder of parties
Allows a P to join parties if they want.
Not required but P might be precluded from joining later if they don't join now.
Requirements:
Common question: All the claims by and against all the parties share at least one common question of law or fact
AND
same transaction requirement: all the claims must arise out of the same transaction/occurrence or series of same transactions/occurrensces.
42
FRCP 14 Impleader
D (3rd party P) adds 3rd party D.
Requires a deriative claim that arises out of the same transaction of occurrence as P claim against D
43
Derivative claim
A claim against a 3rd party D who is or may be liable to D for all or party of what D has to pay P
44
Indemnity claim
3rd party will be liable to D for the whole amount if D loses.
45
Contribution claim
3rd party will be liable to D for part of the amount if D loses.
46
Claim preclusion
P is precluded from bringing a claim against the same D in lawsuit 2 that they could've brough in lawsuit 1 IF
1) valid and final judgment in lawsuit 1
AND
2) lawsuit 2 involves at least part of the transaction or series of transactions out of which lawsuit 1 arose (transaction test)
47
Issue preclusion
A party is precluded from litigating an identical issue that was actually raised, litigated, and decided if the party already had the opportunity to personally litigate the issue (right to a day in court).
48
Exceptions to day in court for issue preclusion
Representation: The party agreed to ahve the party in the 1st lawsuit represent them
Actual conrol/constructive day in court: The part way behind the scenes in the 1st lawsuit, actually controlling the litigation.
49
28 USC 1332 diversity jurisdiction
Grants diversity jurisdiction to federal courts for all civil actions IF:
1) the amount in controversy exceeds $75,000
2) complete diversity across party lines. The suit (not just the claim) is between citizens of different states.
50
Alien jurisdiction
Also under 1332. Suit is between a citizen of a state and a citizen of a foreign state. Still requires $75,000.
51
28 USC 1331 federal question jurisdiction
District courts have original jurisdiction of all civil actions arising under the constitution, laws, or treatices of the US.
52
Prong 1 1331
Federally created claim with a not totally stupid argument for a claim.
53
Not totally stupid argument
Not frivolous, patently without merit, or obviously foreclosed by prior decisions.
54
Prong 2 for 1331
State created claims with an important federal issue (central to the ase) that arises in the right way and meets certain criteria.
55
Steps for Prong 2 analysis
1) Is there an issue of federal law?
2) If yes, Is the well-pleaded complaint rule satisfied.
56
Well-pleaded complaint rule
Issues of federal law that arise under a state claim must necessarily arise as part of P's prima facie case (what P must plead to meet their pleading burden).
It doesn't include everything P actually alleged, only what they had the burden of alleging.
57
28 USC 1367
supplemental jurisdiction
58
Main claim
The original P sues D claim.
59
1367(a)
A district court has supplemental jurisdiction over claims that are closely enough related to the main claim, that they form part of the same case or controversy under Article III.
60
Overlap test (for supplemental jurisdiciton)
There's signficant overlapping facts and evidence between each claim.
Ex. relies on the same duty, causation is an issue relevant to both and uses a lot of the same witnesses and documentary evidence
61
Logical relationship test (for supplemental jurisdiciont)
Even if there's not a lot of overlap, the claims are connected in some way that makes it reasonable to think of them as pieces of a single dispute.
62
1367(b)
If the main claim has original diversity jurisdiction, the district court does not have supplemental jurisdiction over the following claims that would be inconsistent with 1332 jurisdictional requirements:
Claims by P against parties joined under FRCP 14, 19, 20, or 24
63
Indivisibility theory (supplemental)
Original jurisdiction is determined at the beginning of the lawsuit, so the piggybacking claim must have original jurisdiction. Court rejects this.
64
Contamination theory
Supplemental claim can contaminate and destroy jurisdiction over the main claim
65
Holding of Exxon Mobil
P can't use 1367 when the obstacle to 1332 jurisdiction is no complete diversity, but can use it when the obstacle is the amount in controversy requirement.
66
28 USC 1441 removal jurisdiction
(a) if there's original jurisdiction (diversity/federal/supplemental) over the main claim, D can remove, but only to the federal district court that geographically embraces where the state court claim is pending.
67
1441(b)(2) home state exception
D can't remove based on diversity jurisdiction if any D is a citizen of the state in which P brought the action.
68
1441(c) removing suit, one claim has original jurisdiction, one doesn't, what happens?
If a civil action includes one claim that would have federal question jurisdiciton and another claim that either doesn't have original/supplemental jurisdiction or is non-removable by statute, the whole thing can get removed and the federal court will sever the second claim and remand it to state court.
69
How long do you have to file for removal?
30 days of getting served with the intial pleading or 30 days of an amending pleading showing that the case has become removalbe, but also needs to be within 1 year of commencement of the lawsuit
70
How long does P have to file motion to remand removal?
30 days after the notice of removal was filed, but for a jurisdictional defect, can move to remand at any time
71
FRCP 12(h) and (g)(2)
A party waives motion to dismiss for lack of JOP by failing to raise it at the first opportunity 12(b)2). Same goes for motion to dismiss for improper venue 12(b)(3). Also 12(b)(4) and 12(b)(5)
72
X
X
73
When do we need to consider venue?
Only at the beginning of the lawsuit and for FRCP 19 joinders.
74
Gilbert factors for transfering venue
Private interests: 1) relative ease of access to sources of proof, 2) availability of compuslory process for attendance of unwilling and cost of obtaining attendance of willing witnesses, 3) possibility of view of premises if view would be appropriate to the action, 4) other practical problems that make trial of a case easy, expeditious, and inexpensive.
Public factors: 1) administrative difficulties flowing from court congestion, 2) local interest in having localized controversies decided at home, 3) the interst in having the trial of a diversity case in a forum that is at home in with the law that must govern the action, 4) the avoidance of unnecessary probems in conflict of laws or in the application of foreign law, 5) the unfairness of burdening citizens of an unrelated forum with jury duty
75
Forum nonconveniens
Common law rule. Used when the comparatively much better place is a foregin country because you can't transfer the case. Often conditions. Dismisses case and forces P to file elsewhere. The fact that law is less desirable for P weights with other factors, but doesn't bar transfer by itself.
76
1404(a) transfer
A federal district court may transfer any civil action to any other district or division where P could've oriignally brought the case or to which all parties consented.
Requires the SMJ/JOP/venue.
77
Notice requirement
It has to be reasonable. To determine what's reasonable, the court must balance:
The interst of one side in receiving better notice (to improve their chance to participate) and the other side's interest in its existing scheme.
78
FRCP 12(h)(2) failure to state a claim upon which relief can be granted 12(b)(6) and failure to join a person required by 19(b) 12(b)(7) can be raised
a) in any pleading allowed or ordered under FRCP 7(a)
b) by a motion under FRCP 12(c)
c) at trial
79
FRCP 12(h)(3) when do you consider SMJ?
Court must dismiss the action at any tim if it lacks SMJ
80
FRCP 19
Compulsory joinder of parties.
81
FRCP 19 steps
1) should they be joined if feasible?
2) Is it feasible for absentee to be joined?
3) Should P v D suit be dismissed?
82
FRCP 19(a)(1)(A)
Forcing the absentee into the lawsuit to avoid serious enough harm to the court.
Consider: judicial economy. It's efficient to join Ds given that htere's a lot of overlapping facts, evidence,a nd arguments.
In the absentee's absence, the court can't accord complete relief among existing parties.
Must join parties to grant complete relief.
Ex. When an injunction requires absentee to be bound in order to be effective.
83
FRCP 19(a)(1)(B)(i)
Forcing the absentee into the lawsuit to avoid serious enough harm to the absentee.
Consider:
1) the result in the 1st lawsuit could adversely affect absentee who is in the 2nd lawsuit by: preclusion, practical (non-legal) impairment, ex. serious impact on business.
Practical effects aren't good enough due to slippery slope, could require all parties adversely affected by the judgment to be joined.
2) Super stare decisis (if special reason why judge in lawsuit #2 might follow the result in lawsuit #1). Oridinary stare deicsi isn't enough due to slippery slope problem.
84
FRCP 19(a)(1)(B)(ii)
Forcing the absentee into the lawsuit to avoid serious enough harm to D.
consider:
1) double or multiple liability (pay twice for the same thing)
2) Inconsistent obligations (ex. different injunctions in seperate lawsuits require the same party to do inconsistent things), not the same thing as inconsistent decisions.
85
FRCP 19(b) should P v D suit be dismissed if SMJ, JOP, or Venue problem
Factors:
1) the etent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;
2) the extent to which any prejudice could be lessened or avoided by protective provisiions in the judgment, shaping the reliefi, or other measures
3) whether a judmgent rendered in the person's absence would be adequate; and
4) whether P would have an adequate remedy if the action were dismissed for nonjoinder.
86
FRCP 56(a) SJ
the court grants summary judgment if the movant shows no genuine dispute as to a material fact and the movant is entitled to judgment as a matter of law.
87
How long to file motion for SJ?
30 days after discovery ends.
88
Point out method
D points out that there isn't admissible evidence in the record to support P's allegations.
D reviews all evidence in record and shows why none of it support P's positino sufficiently to carry P's burden of production.
89
Foreclose the possibility method
D presents evidence to support a prima facie case that X does not exist.
D must submit enough evidence that, looking at D's evidence alone, forecloses the possibility of X.
P then resonds, filing an opposition saying that they don't think D met it's initial burden of foreclsore
and/or
Showing additional evidence supporting X.
90
After point out method/foreclose the possibility?
Court decides the motion.
Could a reasonable jury find for P by the trial burden of persusasion that X exists.
Court construes evidence most favorabl to NMP, ignoring credibility problems.
Under Celotex majority you look at admissible evidence plus evidence that is inadmissable due to being in the wrong form.
When weighing does case seem extremely one sided in favor of D?
When not weighing, just look at NMP evidence.
Also, judge has discretion to deny SJ even if all the SJ requirements are satisfied.
91
56(d) request for more time to conduct discovery
NMP submits affidavit with what they'll do with extra time (ex. depose people) and wh it will allow them to elicit helpful info.
Can do this if they show it can't present facts essential to justify its opposition to SJ yet.
Motion for SJ would be postponed until after more discovery.
92
Erie doctrine
When a state claim is brought in a fed court, the fed judgme must follow state substantive law and federal procedure law.
93
Is SoL substantive or procedural for purposes of Erie doctrine?
Substantive.
94
Twin aims of Erie
Federalism (forum shopping) and fairness
95
Erie doctrine when Constitution applies
If yes, apply constitution over state substantive rule.
96
Erie Doctrine when a federal statute applies?
Ask if it is constitutional (within constitutional power tribunal clause + N&P, arguably procedural?). If yes, apply federal statute (no matter how substantive it is).
97
Is FRCP subject to ERie doctrine?
No. Erie doctrine based on RDA, FRCP subject to REA.
98
Does FRCP apply when in confliction with state law?
Fed court must apply FRCP if it is a) constitutional (within congressional power tribunal + N&P, arguably procedural) and it does not violate the REA proviso (it doesn't "abridge, enlarge, or mordify any substantive right").
A valid FRCP displaces any conficting state rule no matter what the state rule is.
99
Meeting REA proviso?
Incidental effect on substantive rights are ok.
Strong presumption in favor of meeting proviso. Many steps of approval by many smart people aware of proviso requirement. SCOTUS has never held FRCP invalid on its face.
If there's a conflict, judge may try to get around REA conflict by interpeting FRCP to be consistent with state law.
100
Federal common law vs State law under Erie doctrine?
Two tests from Hanna
1) Forum shopping test and 2) inequitable administration of the laws test
101
Forum shopping test
Whether applying the different rule in federal court would encourage reaosnable Ps to forum shop when considered at a time that they could make a free choice.
1) Look at the world when P can satsify both fed and state rules.
2) whether federal rule is so much better for P than state rule that P would choose federal over state becaue of it.
If choosing the fed forum over state forum is a serious likelihood, then the fed court has to follow state's rule.
If not significant go to IAL test
102
Inequitable administration of the laws (IAL) test
Taps the grave discrimination concern in erie.
IAL exists when there is a substnatial nough difference between the federal rule and the state rule that unequal treatment rises to a serious level.
IAL does federalism work.
103
General JOP questions?
1) Were they served in the state?
2) Are they at home in the state?
If yes to either, then general JOP. If no to both, no general JOP.
104
Specific JOP questions?
1. Minimum contacts test (PA/RA)
2. Reasonable (factors: burden on D, state interest in litigating, convenience/efficiency, quality and quantity of D contact with state)
105
minimum contact test SJOP
Sufficient minimum contacts with the forum state such that it is fair, just and reasonable, to require that D defend suit in the state.
106
PA (purpose)
Defendent purposely availed themselves of the privileges and benefits of the forum state
It's not unfair to burden the D to defend int the forum state if he's received benefits from activities in the state and the suits are related to those activities.
107
RA (control)
D can reasonably anticipate being hauled into court in the forum state (control over whether it has to defend in the state).
108
FRCP 13 counterclaim
a) arise out of the transaction or occurrence that is the subject matter of the opposing party's claim and;
b) does not require adding another party over whom the court can't aquire jurisdiction.
109
compulsory vs permissive counterclaim
Compulsory if it arrises out of the same transaction or occurence. Permissive if it doesn't.
110
X
X
111
What does claim preclusion prevent
It prevents the splitting of what should be one lawsuit into seperate suits.
