outline Flashcards
(280 cards)
1
Q
Personal Jurisdiction
A
Refers to a courts authority over a D
2
Q
Types of Jurisdiction
A
- In personam; 2 In Rem; 3. Quasi in re
3
Q
How to get Personam Jurisdiction
A
Present in the forum state & is personally served (Even if merely passing through)
4
Q
In Personam Service non resident
A
D can be served through agent, a D is served with process while in forum state is likely to be subject to the courts jurisdiction even if D is only temp there and even if their presence their is unrelated to the law suit. EXCEPTION: Force, fraud, participation in another judicial proceeding. (SERVICE NOT ESTAB)
5
Q
In personam service (resident)
A
Person is physically present in the state (domiciled) and intends to reamin
6
Q
In personam consent to service
A
Express & Implied
7
Q
In personam service express consent
A
Person may expressly consent to personal jurisdiction (forum selection clauses)
8
Q
In personam service implied consent
A
State may have a substantial interest in regulating the in-state activity of a non resident (nonresident motorists) EX. choosing to drive in another states road, implied consent; service on family member
9
Q
In personam waiver
A
D that fails to raise the def of lack of pers. juris. in an answer or motion under 12(b) is deemed to have consented
10
Q
In personam waiver
A
D that fails to raise the def of lack of pers. juris. in an answer or motion under 12(b) is deemed to have consented to pers juris b waiver. EXCEPTION: D making special appearance to object to the courts jurisdiction
11
Q
In personam long arm
A
Permits the court of a state to obtain juris over out-of-state D.
12
Q
In personam Intentional tort rule (long arm)
A
A person who commits a tortious act outside of the state (towards a resident of that state), that has a connection within the state, submits to that state’s jurisdiction
13
Q
In personam long arm applies when:
A
transction of bus. within forum state, contracts anywhere within the forum state to supply goods/services; ownership, use, possession, of any real property within the state
14
Q
In Rem Juridiction
A
suit against property; based on who has the right to ownership of the property located within the state. In order for in rem to exist:
15
Q
In Rem jurisdiction requires:
A
- There must be real or personal property of value 2. Property must be located within the state where the federal district is located 3. The court must seize the item and 4. The owner of the property must have received proper notice
16
Q
IN REM JURISIDCITON no longer domiciled in the forum state is subject to in rem when:
A
1 cause of action is one that is od a domestic nature 2. the forum state was the place of matrimonial domicile, the D avandoned the P in the forum statem 3 an arrangement or settlement for support was entered into the forum state
17
Q
Types of Jurisdiction (personal)
A
- In personam; 2 In Rem; 3. Quasi in re
18
Q
In personam long arm applies when:
A
transaction of bus. within forum state, contracts anywhere within the forum state to supply goods/services; ownership, use, possession, of any real property within the state
19
Q
IN REM JURISIDCITON no longer domiciled in the forum state is subject to in rem when:
A
1 cause of action is one that is od a domestic nature 2. the forum state was the place of matrimonial domicile, the D abandoned the P in the forum state 3 an arrangement or settlement for support was entered into the forum state
20
Q
Quasi in rem
A
suit against a non-resident D through their property located within the state
21
Q
Quasi in rem rule:
A
Minimum contacts test must be satisfied in order for the state to have quasi in rem jurisdiction over causes of action unrelated to the property. A state cannot obtain personal jurisdiction over a party based merely on that party’s ownership of property in the state. (now unconstitutional)
22
Q
Quasi in rem is:
A
o Power of the court to attach or seize property as a means of gaining jurisdiction over the person
o Judgment affects only the property seized in order to satisfy the debt (no other property involved)
23
Q
Amenability
A
Whether D is subject to being sued in that state
24
Q
Specific Jurisdiction
A
State may exercise jurisdiction where the claim against D arises out of or is related to D’s presence in the forum state
25
Spec Jur: Amenability: Minimum contacts test Def
Must not offend the traditional notions if fair play and substantial justice (Intl show v Was)
26
Spec Jur: Amenability: Min contacts elements
1. Purposeful availmnet 2. Foreseeability 3. Reasonable anticipation of being haled into court 4.Stream of commerce
27
Spec Jurisdiction: Fair and play substantial justice test ( 5 factor balancing test)
1. Burden of the Defendant 2. Plaintiffs interest in convenient and effective relief 3. Forum states interest 4. Shared interests of several states in furthering fundamental policies
5. Judicial system's interest in effective resolution of controversies
28
General Jurisdiction
Continuous and systematic contacts. (Pennoyer v Neff trad test)
29
Gen Jur: Continuous and systematic contacts
1. Where the D is regularly engaged in business, has a facility, or is frequently in the state that the number and quality of the D's contacts with the state would be systematic and continuous, the court will have general jurisdiction over the D. 2. Constant physical presence is not required, doing business on a regular basis would be sufficient. D is essentially "At home" in the forum state.
30
Gen Jurisdiction: Trad test:
Pennoyer v Neff: Rule- Ifa naction is merely a determination of D's personal liability, he must be brought within its jurisdiction by personal service of process within the state or by his voluntary appearance. Imposes a national standard of due process of the 14 amendment.
31
Specific Jurisdiction Rule
A state can exercise specific jurisdiction over D whose contacts with that state consist solely of a single act or contract that gives rise to the claim where the claim against D arises out of or is related to D’s presence in the forum state
32
Purposeful availment rule
D must purposefully avail himself (reach out in some way) of privileges of the forum state, invoking the benefits and protections of its laws, in order for the forum to gain jurisdiction
33
Choice of forum clause
sets the particular state or court where adjudication will be addressed; parties consent to be subjected to the laws in that forum
34
Choice of Law clause
– a contract between the parties that contains a choice of law clause requiring consent that any dispute b/w them arising from the contract shall be determined in accordance with the law of a particular jurisdiction
35
Foreseeability Rule
Non-resident D must have minimum contacts with the forum state and D’s conduct and connection with the forum state are such that the possibility of litigation must be foreseeable
o Foreseeability that is critical to due process analysis is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there
36
Stream of commerce rule
Merely placing an item in the stream of commerce, by itself, is not sufficient to prove that D was purposefully availing himself toward the forum state; D must show intent to serve a particular state (ex: by modifying a product to comply with the state’s law) in order to establish sufficient jurisdiction
37
Stream of commerce exception
Placing an item in the stream of commerce with the knowledge or hope that it will wind up in a particular state would be a sufficient basis for personal jurisdiction; however, if it is the only contact that exists, it is likely unreasonable to make D defend there, and violates due process (Asahi Metal Industry Co. v. Superior Court)
38
Personal Jurisdiction & the internet (zippo sliding scale test)
- Email sent to a recipient in the forum state may be considered sufficient contacts; -active website; - Passive website
39
Personal Jurisdiction sliding scale test, (Active website)
a website that a business uses to carry out transactions with residents of a forum state.
• Usually sufficient to establish minimum contacts for a personal jurisdiction claim arising from the maintenance of the website itself
• The website is brought under the state’s long arm statute (thus invoking specific jurisdiction) if D is specifically targeting readers in the forum state
40
Passive Website
a website that simply provides information is usually insufficient to amount to minimum contacts in order to exercise general jurisdiction over D because the website is not specifically trying to reach in-staters or conduct transactions with them
41
Notice
A separate requirement to obtain personal jurisdiction over D
42
Notice (Forum Law)
Fed R Civ. Pro 4 (1) Personal delivery to D (2) Leaving copies at D residence with person of suitable age and discretion residing at the dwelling place in question
43
Notice: Suitable age
Flex standard
44
Notice- discretion:
mental capacity (i.e. a child of eldery person)
45
Notice (other person)
Must reside with D, spouse can only be suitable if they live with D.
46
Notice: Actual receipt of notice
Must meet the standards of Rule 4 : Ex o Ex: if the process server left the summons on D’s sidewalk outside the house, and D had happened to pick them up, this would not be adequate notice to D
47
Notice: Waiver-
: For example, if you allow service to be made through first class mail and D is required to return an acknowledgment or waiver form to P’s lawyer to let P know that they received a copy of the lawsuit
48
Notice: Substituted Service
You must make 3 reasonable attempts to serve the person; if service cannot be made, you can ask the court for a motion of substituted service. Then you can serve an agent who is appointed by or designated by law to receive process (i.e. neighbor, co-worker, spouse, etc.)
49
Service on out of staters
Where D is not present in the forum state, he must be served out of state only if the state has a long arm statute covering the type of case and D in question
50
Ways for service on out staters
* Notice by certified mail is adequate except when D is known to be incompetent, or if the mail returns with notice of non-delivery
* Public official
* Newspaper publication – only if D’s identity or residence are unknown; where D truly cannot be found by reasonable effort. Notice by publication is insufficient for in personam actions when the addresses of persons are known or reasonably ascertainable
* Corporations: If a corporation wishes to be incorporated in the state or do business in the state, it must designate a corporate official to receive process for suits against the company
51
Notice & Due process
Requires notice and the opportunity to be heard
52
Notice and due process: Mullance v central hannover
Set forth the constitutional standard for adequate notice: “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to appear and present objections.”
Proper notice must convey sufficient info to notify the party of how and by when it should respond and must allow reasonable time to appear
Posting notice on property is adequate except in an environment where it is known that the posting is likely to be removed
You must take additional steps, make follow-up attempts to provide notice after discovering that notice has failed (i.e. if letter has been returned) (Jones v. Flowers)
53
Subject matter jurisdiction
Court's power over a particular type of case and the dollar amount in controversy
54
Sub matter juris: Diversity of citizenship
Must have Article III AND title 28, to have SMJ, SMJ isn't waiveable
55
Title 28
-Must be a claim between citizens of different states OR between State citizens AND foreign citizens, where the amount in controversy exceeds 75K; constitution only requires partial diversity Title 28 requires complete diversity; (All P's have diff citizenship than All D's BUT p's don't have to be from diff states
56
Sub matter: Domicile
Physical presence in the state & Intent to remain there.
57
Corporate citizenship:
1) State of incorporation 2) state of the corporations principal place of business
58
Tests to determine principal place of business
1) Nerve Center Te
59
Tests to determine principal place of business
1) Nerve Center Test
| 2) Muscle Test (Activites)
60
Nerve Center Test:
Where the corporation makes its executive decisions (its brains)
61
Muscle Test (activies)
Where the corporation does a plurality of its activity (i.e. manufacturing)
62
Partnerships citizenship
Have citizenship of all partners domiciles
63
Unincorporated Associations
- Citizenship is that of all the members of the association; - Citizenship of the state under whose laws it is organized and the state where ut has its principal place of business
64
Aggregation of claims (1 def)
1 P against 1 Def (Yes) Can aggregate all claims against one D to meet the amount in controversy requirement
65
Agg of claims ( Multiple P's against 1 Def)
No (Cant join together to meet jurisdictional amount. 2 exceptions: 1. Multiple P's may aggregate if claims are based on common and undivided interest 2) Supp jurisdictional exceptionL if 1 p meets the amount in controversy against the one D, the other p's can be joined as sup BUT all Ps must be diverse from the 1 D.
66
Agg of claims: One P v multiple D's
NO CANGT AGGREGATE
67
Agg of claims: One P v multiple D's
NO CANT AGGREGATE
68
Alienage Jurisdiction
exists where there is a suit between citizens of a state, on one side, and foreign states or citizens thereof, on the other
69
Resident Alien
an alien who lives in the United States permanently is deemed a citizen of the State in which he is domiciled
70
Alien and U.S Citizes on the same side
jurisdiction is not destroyed by the fact that one or more non-resident foreigners and one or more U.S. citizens are each present on each side of the litigation
Ex: P1, a citizen of Ohio, and P2, a citizen of Canada (living in Canada), sue D1, a citizen of New Jersey, and D2, a citizen of Canada (living in Canada). You pretend as if the foreigners are not present; therefore, the requirements for diversity jurisdiction are satisfied
71
Stateless person residency
individuals who are not a citizen of any country – are not eligible for diversity status
72
When is status of citizenship calculated?
Day the suit is filed
73
Federal Question- Arises under
Title 28: 1. US Constitution 2. Fed Law 3. Treasities
74
Fed Question
o The mere presence of a federal issue in a state claim is generally not sufficient to impose federal jurisdiction. Nor is the claim sufficient where there is a violation of a federal statute, but no federal remedy exists for that violation.
75
State question and fed question
o A state question that involves a question of federal law may be sufficient to establish jurisdiction in a federal court, provided that the federal law’s impact on the state question is substantial
76
Supplemental Jurisdiction
Claims that do not provide SMJ may be combined with appropriate claims through the court’s supplemental jurisdiction, provided that they arise out of the same case or controversy
-the same transaction or occurrence OR
-a common nucleus of operative fact
77
Supp Jurisdiction attaching claims:
o Supplemental jurisdiction can attach both claims and parties to an action. Non-diverse parties may be added, even for state claims, as long as those claims arise out of the same transaction or occurrence as the original claim.
78
Fed Court sup jurisdiction
o A federal court will not have supplemental jurisdiction if the P is attempting to use supplemental jurisdiction to avoid the diversity requirement.
79
Where does federal have sup jurisdiction
o Supplemental jurisdiction exists only where the federal court already possesses subject matter jurisdiction over the original claim based on either federal question or diversity jurisdiction. However, a court is not required to exercise supplemental jurisdiction
80
Fed Court SHOULD NOT exercise sup judgement when:
1) the state issues predominate over the federal claim
2) the supplemental claim presents a novel or complex issue of state law
3) the federal claim has been dismissed, or
4) when other circumstances are present, such as the likelihood of jury confusion resulting from hearing the claims jointly
81
Removal
o Title 28, Section 1441: Gives D who has been sued in a state court the right to “transfer” the action from state to federal court, if the federal court would have had jurisdiction over the case had P filed it there originally (removal is only granted to D, not P)
82
Examples of removal
Ex: P, from New Jersey, sues D, from NY, in New Jersey state court. The suit is a garden-variety automobile negligence case. The amount at issue is $100,000. D may remove the case to federal district court for the District of New Jersey
Ex: P is badly injured in an automobile accident caused by D’s negligence. P’s medical bills total $80,000, but P sues only for $60,000 for the express purpose of preventing D’s rights to remove. P’s complaint controls so that D may not remove even though more than $75,000 is really at stake.
83
Removal of Multiple Claims: Supp claims
allows for removal of additional claims under non-federal law that do not themselves satisfy federal question or diversity criteria, if they form a part of the same case or controversy as a claim that is eligible for federal jurisdiction
84
Removal of Multiple Claims: Separate and Independent Claims
where a P’s non-removable claim under state law is accompanied by a “separate and independent claim” under federal law, the entire case may be removed. Ds can thus remove unrelated claims, one of which does not qualify as a federal question, diversity claim, or supplemental claim. This statute is rarely used
85
Categories of Removal
1) Jurisdictional 2) Procedural
86
Removal- Jurisdictional
: A request for removal on ground of diversity jurisdiction will not be granted if any D in the case is a citizen of the forum state.
If there is a jurisdictional defect in the removal, the case must be remanded to state court no matter when the objection is made
87
Removal- Procedural
: D must file a Notice of Removal in federal court, containing a short and plain statement of the basis for removal (that is, the jurisdictional and procedural grounds). The Notice of Removal must include a copy of all state court pleadings, and must be filed in both the state and federal court and served on all parties
88
Removal Procedural subsets
All D’s must join in the notice of removal, except for those not served
Notice of removal must be filed within 30 days of D’s receipt of service of the initial state court pleading or it is waived
89
Removal Procedure: One Year rule
When the case that is not initially removable (no federal question or diversity) but becomes removable later in the case, removal must occur no later than one year after the case was filed in state court
90
Venue
• 28 U.S.C. 1391 Federal statute for general venue provisions
o Relies on two important criteria: (1) the residence of D and (2) the location where the dispute arose
91
Venue: Diversity Cases
Where any D resides
Where a substantial portion of events occurred or a substantial part of property subject to the action is located and
Where any D is subject to personal jurisdiction at the time the action is commenced
92
Venue: Federal Question cases
Where D resides
Where a substantial portion of events occurred and
Where any D can be found (D is subject to personal jurisdiction in that district)
93
Transfer of Venue
o If venue is improper, a federal court may transfer the action to any other district in which it might have been brought “for the convenience of parties and witnesses, in the interest of justice.”
94
When venue is transferred
The substantive law applied should be the same law that would have been applied by the transferor court
95
Venue transfer Burden:
To show: • The convenience of the parties and witnesses, the ease of access to proof, and other factors favor transfer and
• The action could have been brought in the transferee court; that is, the transferee court has personal and subject matter jurisdiction
96
In county venue transfer
– gets you to a new location in another state, but the same law will be applied
97
Out of country transfer
you move out of country, you have to apply whatever country’s law you move to
98
Forum Non Conveniens
o A court may obtain a dismissal based on forum non conveniens if two requirements are met: (1) there must be an adequate alternative forum available for the case; (2) there must be a showing that interests of convenience to the parties and certain public interests argue in favor of the alternative forum
99
P choice of venue
o P may not, by choice of an inconvenient forum, vex, harass, or oppress D by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy
100
Three factors courts consider whether to dismiss for forum non conveniens
1. Whether P is a state resident (if so, he has a stronger claim to be able to have his case heard in his home state)
2. Whether the witnesses and sources of proof are more available in a different state or country; and
3. Whether the forum’s own state laws will govern the action (transfer is more likely if a different state’s law controls)
101
Motion to dismiss for forum non conveniens
, a court should consider both private and public interest factors as a second balancing test
102
Private interest (forum non conveniens)
Relative ease of access to sources of evidence
Availability of compulsory process for the attendance of unwilling witnesses
Cost of attendance of witnesses at trial
Possibility of viewing the scene if appropriate to the action
Other practical matters related to making the trial easy, speedy, and inexpensive
103
Forum non conveniens (public interest)
Administrative difficulties of the courts
The interest in having local controversies adjudicated at home (not burdening local courts with distant disputes)
The interest in having the trial in a forum that is similar with the law governing the action
The avoidance of unnecessary problems in conflict of laws or the application of foreign law
The unfairness of burdening citizens in an unrelated forum with jury duty
104
Choice of Law
Horiztonal/ Vertical
105
Horizontal Choice of law
: the choosing of the applicable law based on where an event occurred, where the parties are from, or what the parties may have agreed to
106
Vertical Choice of Law
: the choosing of state or federal law based on concepts of federalism found in the U.S. Constitution, federal statutes, and judicial doctrines
107
Choice of law applies:
Substantial choice of law which courts apply their own.
108
Choice of Law: Rule and Decisions Act
): provides that "the laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply."
109
Rules and decisions act applies to :
o The Rules of Decision Act directs federal courts to apply state law with regard to any issue that is not governed by a valid federal rule. If a federal rule exists, whether constitutional, statutory, or judge-made, the federal rule shall apply.
110
The Erie Doctrine
o The federal courts must follow state substantive law (judge-made common law & state statutes)
o Federal courts still apply their own federal procedural law
o Reverses Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply the law of the state in which that federal court sits.
111
Erie Doctrine Exception
When the United States is a party to a case, the court does not follow state law; they are bound by federal law
112
Twin aims of Erie:
(1) discourage forum shopping and (2) avoidance of inequitable administration of the laws
113
When to apply state law:
Two places that federal courts have to follow state law: (1) The highest court in that state (state supreme court) and (2) the state legislature
114
When a state hasn't spoken on the issue at question
then the court can look to other sources such as prior federal diversity cases which have attempted to predict and apply the law of the same state. The federal court may also look at the practice of other states, other authorities (restatements), etc.
115
Conflicting Laws:
the state law that would apply must conflict with the federal rule, statute, doctrine, or procedure regarding the subject of the action. In general, the court must use state substantive law and federal procedural rules.
116
Rules Enabling Act:
provides the United States Supreme Court may enact the Federal Rules of Civil Procedure, provided that no rule may abridge, enlarge or modify any substantive right.
117
Federal rule and conflicting state law
o A federal rule prevails over any conflicting state law if (1) a federal rule is on point with the state rule and (2) it does not abridge, enlarge, nor modify a substantive right
118
• Outcome Determinative Test
provides that the Erie Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.
119
When there is diversity juris
the federal court should ensure that the outcome of the federal court’s application of law would not be different than the outcome if the state had tried the case (Federal law controls unless its outcome determinative then follow state law). Whether the state or federal law is to be applied is not just whether the law is substantive or procedural, or whether it is outcome determinative, but whether it complies with the policies underlying the Erie doctrine
120
Balance of interests test
: the federal court weighs whether the state or federal judicial system has the greater interest in having its rule applied to the matter
121
When state interest is weak:
o Where the state interest in having its policy followed is fairly weak, and the federal interest is strong, the court is likely to hold that the federal procedural policy should be followed. If applying the federal case law would lead to forum shopping or inequitable administration of the laws, state law should be used.
122
If rule at issue is procedural and the federal rule on point with state rule:
, then the Federal Rule must be applied as long as it complies with the Rules Enabling Act.
123
If no federal rule on civil procedure
then apply the Byrd test subject to the twin aims of Erie.
124
Diversity Conflict Test:
If conflict involves federal rules of civil procedure and federal rule is on point go to Rules Enabling Act as long as rule does not abridge, enlarge, or modify substantive rights federal law is applied
If conflict does not involve FRCP and federal rule is not on point Erie doctrine Byrd balancing test
125
CL pleading
; a writ or order from authority
126
Code pleading
– you have to allege enough evidentiary facts which, if proven with evidence at trial, would constitute proof of that element (it must be perfect)
127
Notice pleading
```
Rule 8(a)(2); dominant form of pleading today in the U.S.; relaxes the strict rules of code pleading; each state has its own rules of civil procedure
o Pleading ≥ Discovery ≥ Evidence ≥ Verdict = Judgment
o State court = evidentiary facts
o Federal court = put D on reasonable notice about what is being alleged
```
128
• FRCP 8(a) Claim for Relief
– In federal court, P’s initial pleading is called a complaint. It must contain:
o An allegation of subject matter jurisdiction
o A short and plain statement of the claim showing that the pleader is entitled to relief
o A demand for judgment
129
• FRCP 8(b) Answering the Complaint
o In federal court, D’s answer must respond to each paragraph of P’s complaint with one of the following:
Admission
Denial
Statement that D lacks sufficient knowledge to respond
130
The answer must be...
o The answer must be signed by D’s lawyer. Attorney’s signature constitutes a certificate that the signer has read the pleading, believes it to be well founded, and that it is not interposed for delay
131
• Rule 8(c) – Affirmative defenses (11)
```
— contributory negligence
— assumption of risk
— fraud
— statute of limitations
— discharge in bankruptcy
— estoppel
— failure of consideration
— payment
— release
— res judicata
— statute of frauds
```
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Failure to plead affirmative defense
waiver
133
• FRCP 9 Heightened Pleading
Supreme Court explained that “the short and plain statement of the claim” required under Rule 8 must include “sufficient factual matter” to state a plausible claim. The Supreme Court requires the P to state facts supporting a plausible (not just possible) claim.
134
o Pleading special matters include:
-Denial of a party’s legal capacity to sue or be sued
- Fraud, mistake, or condition of the mind
• Ex: If you try to sue me for fraud, you cannot use notice pleading; you must use code pleading
- Any denial of performance or occurrence of a condition precedent
- The existence of judgments or official documents on which the pleader plans to reply
-Material facts of time and place
- Special damages
-Certain aspects of admiralty and maritime jurisdiction
135
• FRCP 12(b)(6) Motion to Dismiss for Failure to State a Claim
Allows the court to test the legal sufficiency of plaintiff's claim.
136
A court will dismiss a complaint under Rule 12(b)(6) {motion to dismiss for failure to state a claim) if
o The complaint fails to state a cognizable claim
o The complaint provides insufficient facts, or
o The complaint contains an allegation that negates one or more elements of the cause of action.
137
• FRCP 12(a) Time Permitted for a Response
The answer must be served 21 days from the service of the complaint to respond either by a motion pursuant to Rule 12 or by answering the complaint
138
• FRCP 11(a) : what every motion, and other paper must be
Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name or by a party personally if the party is unrepresented. Requires the attorney to attest/sign that he has made a “good faith investigation of the facts.”
139
• FRCP 12(b) Objections
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (Failure to raise an objection in an answer or motion to dismiss constitutes a waiver of these defenses)
140
7 objections
1) Lack of SMJ
2) Lack of personal jurisdiction
3) Improper venue
4) Insufficient process
5) Insufficient service of process
6) Failure to state a claim upon which relief can be granted
7) Failure to join a party under rule 19
141
• FRCP 15(a) Amendments
o Amendment as of Right
| o Amendment by Leave of Court
142
o Amendment as of Right
: A pleading may be amended once as a matter of right (i.e. without leave of court) as follows:
The complaint may be amended once at any time before an answer has been served
The answer may be amended once within 20 days after D has served it
143
o Amendment by Leave of Court
A pleading may be amended only by leave of court, or by consent of the other side; but leave by the court to amend “shall be freely given when justice so requires”
o The court will deny leave to amend only if amendment would cause actual prejudice to the other party
144
• FRCP 15(c) Doctrine of Relation Back
o Adding an additional party by amendment of the pleadings only relates back to the date of the original complaint if the parties originally listed were listed by “mistake.” “Mistake” means the wrong name, not listing “unknown” or something else to indicate lack of knowledge or identity of the party. Will treat the new claim as though it had been filed with the original claim. The doctrine of relation back also allows a plaintiff to add a new defendant after the statute of limitations has run if the balancing test in Rule 15(c) is satisfied.
145
• FRCP 15(c) Doctrine of Relation Back example
o Ex: On Jan. 1, P files a complaint against D for negligently manufacturing a product that has injured P. The case is brought in diversity in Ohio federal district court. On Feb. 1, the Ohio statute of limitations (which controls in a diversity case) on both negligence and product liability claims arising out of this episode runs. On March 1, P amends to add a count alleging strict products liability. Because the products liability claim arises out of the same conduct or transaction as set forth in the original negligence complaint, the amendment will relate back to Jan. 1, and P will be deemed to have met the statute of limitations for his products liability claim.
146
• FRCP 15(d) Supplemental Pleadings
– provides that the court may allow the filing of a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented
147
• Provisions to deter frivolous pleadings:
o Rule: In a shareholder derivative action, the P need not know every detail about the complaint, nor understand that a lawsuit has been filed alleging certain claims. The good faith allegations made by a lawyer suffice to require the D to respond to the complaint.
148
o FRCP 23(b)
– In a derivative suit the complaint shall be verified by oath by an individual; verification by an attorney should be enough to meet the requirements
149
o Two Burdens of Evidence: (sup pleading)
- P has the burden of going forward with the evidence (P must have testimony, established documents, witnesses)
- Burden of persuasion (to the jury)
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• FRCP 18 Joinder of Claims
o A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party
o If the joinder of claims would lead to jury confusion or some other prejudice, the court may sever the claims for separate trials.
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o FRCP 19 Compulsory Joinder
A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined as a party if
• In that party’s absence, the court cannot grant complete relief among existing parties, OR
• The party claims an interest relating to the subject of the action, and an adjudication without the party may
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When joinder is not feasible
the court must determine whether in equity or good conscience, the action should proceed among the existing parties or should be dismissed.
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The 4 factors for the court to consider: (when joinder isn't feasible)
* The extent to which the judgment rendered in the person’s absence might prejudice that person or the existing parties;
* The extent to which any prejudice could be lessened or avoided
* The adequacy of a judgment rendered in the person’s absence; and
* Whether the plaintiff would have an adequate remedy if the action were dismissed for non-joinder
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o FRCP 20 Permissive Joinder
Permissive joinder allows any party to join unrelated claims against existing parties
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Permissive Joinder (2 types)
Two types: (1) the right of multiple P’s to join together; and (2) P’s right to make multiple Ds to her claim
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Permissive Joinder- Multiple Ps can join in one lawsuit if:
(a) each P asserts any right to relief arising out of the same transaction, occurrence, or series of transactions or occurrences, AND
(b) any question of law or fact common to all these persons will arise in the same action
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Personal jurisdiction (Permissive Joinder)
Where joinder of multiple Ds is involved, the requirements of personal jurisdiction must be met with regard to each D individually (each D must be personally served; each D must individually fall within the in personam jurisdiction of the court by having minimum contacts; and each D must be amenable to suit by the state’s long arm statute)
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Subject matter jurisdiction (Permissive Joinder)
There is no supplemental jurisdiction for Rule 20 joinder of multiple Ds; courts are split about whether there is for multiple Ps. So in a case with no federal question, it’s clear that there has to be at least one P who’s diverse with all Ds
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o FRCP 21 Misjoinder and Nonjoinder of Parties
The court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.
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• Impleader or Third Party Practice (FRCP 14)
o D may implead (bring in) a third-party (non-party) who he believes may be liable to him for all or part of the P’s claim against D
o Original D becomes the third-party P, and must file a third-party summons and complaint with the court where the original action is pending and may also assert other claims she may have against the third-party D
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Derivative Liability (Impleader)
For a third-party claim to be valid, the TPP may not claim that the TPD is the only one liable to the original P, and that he himself is not liable at all.
Rule 14 cannot be used to impose alternative defendants on the plaintiff. P chose to sue the original D. The original D (now the TPP) may only implead to recover all or part of the damages from the TPD. However, the TPP is not precluded from claiming in an alternative pleading that neither she nor the TPD is liable.
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o The original P may also assert any claims against the TPD (Impleader)
TPD arising out of the transaction or occurrence that is the subject matter of that P’s claim against the TPP
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o The claim by P against the TPD must (Impleader)
must independently satisfy jurisdictional requirements (SMJ must have diversity between P and TPD, and must exceed $75,000)
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o Rights of a TPD (IMPLEADER) 5))
* Service of process
* File an answer to the third-party complaint, which may include any defenses that the third-party plaintiff asserted in his answer to the original complaint
* Assert counterclaims or cross-claims
* Implead additional non-parties by third-party complaint, and
* Appeal orders or final judgment in the action.
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o Dismissal and Separation
The court may dismiss a third-party complaint without prejudice, or order a separate trial of the third-party claim or any separate issue within it, where it finds that the controversy between a third-party P and third-party D would unduly delay the determination of the original action or prejudice a substantial right of one of the parties.
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• Interpleader
o Allows a party who owes something to one of two or more other persons, but is not sure whom, to force the other parties to argue out their claims among themselves. Allows the stakeholder to avoid being made to pay the same claim twice. Interpleader is only applicable where multiple claims demand the same thing or obligation.
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o Rule Interpleader (FRCP 22)
Interpleader is used as a remedy for any person who is or may be exposed to multiple liabilities from adverse claims.
• Ex: Howard Hughes died and people came out of the woodworks claiming to be his illegitimate child
In an interpleader initiated by FRCP 22, the stakeholder may initiate the claim or invoke the rule interpleader by his own initiative or by counter-claiming or cross-claiming
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o Statutory Interpleader (28 U.S.C. 1335)
Allows a person holding property which is or may be claimed by two or more adverse claimants, to interplead all possible claimants
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Jurisdictional Benefits- interpleader
* Nationwide service of process is available for the statutory interpleader where it is not for the rule interpleader; Thus the court where the stakeholder files a statutory interpleader suit may serve its process on any claimant, no matter where in the U.S. that claimant resides or is found
* Diversity is satisfied as long as some two claimants are citizens of different states
* The property which is the subject of the suit must be $500 or more in value
* Venue is established where any one of the adverse claimants resides
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o Difference between Statutory and Rule Interpleader
rule interpleader has no effect on jurisdictional and/or venue requirements. Subject matter jurisdiction must still be established through diversity jurisdiction, federal question jurisdiction, or supplemental jurisdiction.
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For interpleader there must be:
federal question or complete diversity between the stakeholder and the claimants and $75,000 or more in controversy
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Interpleader service:
must be carried out as in any other diversity action – within the state where the district court sits, or pursuant to the long arm statute
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Intervention
o Where certain parties are not initially part of the lawsuit may enter the suit on their own initiative
174
o Intervention by Right (FRCP 24):
A stranger to an existing action may intervene of right if she meets all of the three following criteria:
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Intervention by right 3 criteria
Interest in the subject matter – the non-party must claim an interest relating to the property or transaction which is the subject of the action
Impaired interest – the non-party must be so situated that the disposition of the action may as a practical matter impair or impede her ability to protect that interest
Inadequate representation – the non-party’s interests are not adequately represented by existing parties (she wants to intervene because she thinks she will do a better job)
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o Intervention by Permission
Where the non-party has a claim or defense that involves a common question of law or fact with the primary action
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A permissive intervenor in a diversity case must
must independently meet federal subject matter jurisdiction requirements (i.e. diversity between the intervenor and all Ds)
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Courts jurisdiction on intervention
o In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.
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• FRCP 13(a) Compulsory Counterclaim
o Requires defendant to assert any opposing claim against plaintiff that arises out of the transaction or occurrence or series of transactions or occurences that is the subject matter of plaintiff's claim. If D fails to assert such a claim, he is barred from raising the same claim in a later lawsuit.
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Exceptions to compulsory counterclaim
– the pleader need not state the claim if:
-D wins a dismissal of P's claims prior to filing an Answer
-the counterclaim has not arisen or matured
-the counterclaim requires an additional party over whom the court lacks personal jurisdiction
-the counterclaim is the subject of another pending action
-P's action is not based on personal jurisdiction over D (i.e. an in rem action)
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• FRCP 13(b) Permissive Counterclaim
o A pleading may state as a counterclaim against an opposing party “any claim that does not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim.”
o No claim is too far removed from the subject of P’s claim to be allowed as a counterclaim.
o Ex: P sues D in diversity for a 1989 car accident. D counterclaims for breach of a 1990 contract having nothing to do with the accident. D’s counterclaim is allowed and is a permissive one.
o If D asserts a counterclaim (whether compulsory or permissive), and P neglects to either serve a reply or make a motion against the counterclaim, a default judgment may be entered against P on the counterclaim (FRCP 55(d))
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o Counterclaim supplemental jurisdiction
the court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading; most courts will do this if the counterclaim is compulsory; a permissive counterclaim is probably not within the court’s supplemental jurisdiction, and therefore must satisfy the requirements of federal subject matter jurisdiction (diversity and amount in controversy)
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• Crossclaim
o Any claim by one party against a co-party (i.e. between plaintiffs on the same side) where the claim arises out of the transaction or occurrence that is the subject matter of the original action.
o The crossclaim must ask for relief from the co-party against whom it is directed
o All crossclaims and third party claims must be related to the plaintiff’s claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an unrelated claim against the third party
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VIII. CLASS ACTIONS
* The class action is a procedure whereby a single person or small group of co-parties may represent a larger group, or “class” of persons sharing a common interest.
* The results of a class action are binding on the absent members; only the representatives must satisfy the requirements of personal jurisdiction, subject matter jurisdiction, and venue.
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Prerequisites to class action (4)
1. Numerosity 2. Commonality 3. Typicality 4. Adequacy of Rep
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1. Numerosity ( Class act prereq
the number of members of the class is so numerous that separate joinder of each member is impracticable; no particular number is needed but a rule of thumb is 40 plaintiffs
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2. Commonality ( Class act prereq)
the legal and factual issues are common to those raised by each member of the class; requires a question of law or fact common to the class
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3 Typicality (Class action prereq)
the claims or defenses of the representative party are typical of those raised by each member of the class; representative’s own interest in prosecuting his own case must simultaneously tend to advance the interests of the absent class members (his claim cannot be so different from the claims of potential class members that those members claims will not be advanced by the other’s individual claim)
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4. adequacy OF REP ( PREEQ FOR C)LASS ACTION
– the representative party must show that they can fairly and adequately protect and represent the interests of each member of the class; thus the representatives must not have any conflict of interest with the absent class members and they must furnish competent legal counsel to fight the suit
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• FRCP 23(b) Types of Class Actions
3 types
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Class action type 1:
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1. Prosecution of separate actions would create a risk of:
Inconsistent adjudication (varying judgments for individual class members)
Impede or impair the ability of other members to protect their interests
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Class action type 2
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2. Injunctive relief
The party opposing the class has acted or refused to act on grounds that are generally applicable to the class as a whole
Ex: Civil rights cases where the class says that it has been discriminated against and seeks an injunction prohibiting further discrimination
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Class action type 3
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3. Common question of law or fact predominates
Questions of law or fact common to members of the class predominate over any questions affecting only individual members; and
A class action is superior to other available methods for deciding the controversy
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Four factors to decide controversy in type 3 of class action
(1) the interest of the class members in individually controlling their separate actions
(2) the presence of any suits that have already been commenced involving class members
(3) the desirability of concentrating the litigation of the claims in a particular forum and
(4) any difficulties likely to be encountered in the management of a class action
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Notice of Class action
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o Individual notice, almost always by mail, must be given to those class members whose names and addresses can be obtained with reasonable effort
o For those class members whose names and addresses cannot be obtained with reasonable effort, publication will usually be sufficient
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o For classes certified as a result of common questions of law or fact, the notice must include: (6)
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1The nature (content) of the action
2 The definition of the certified class
3 The class claims, issues, or defenses
4The ability of a class member to make an appearance
5The ability of a class member to request an exclusion from the class (opt out) and
6 The binding effect of a judgment on all members of the class (whether it is for or against the class)
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• Class Action Fairness Act (CAFA)
| o Expands federal SMJ to include classes where:
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The class has more than 100 persons
At least one member of the class is diverse from at least one defendant
The total amount in controversy exceeds $5 million
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o Exceptions – CAFA does not apply to:
Local controversies
| Certain civil rights and other categories of cases
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Purpose of Discovery (7)
1 To provide litigants with an opportunity to obtain and review all of the pertinent evidence prior to trial
2 Witnesses might die or move away
3 Preservation of important testimony
4 Influence by other people (try to get that witnesses testimony before they hear from others)
5 Ascertain and isolate the issue (narrow things down)
6 Find out what the other side is going to do
7 Elimination of surprise (avoid “trial by ambush”; truth seeking)
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scope of discovery
o The scope of discovery, both in Texas and federal courts, is all matters “not privileged” that are “reasonably calculated to lead to the discovery of admissible evidence.”
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o A party is entitled to demand the discovery of any matter that is
Not unreasonably cumulative or burdensome;
| Relevant to the claim or defense of any party;
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• If the requested info can be obtained from another source that is more convenient, less burdensome, or less expensive
, a party may be required to obtain it from the other source
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• Privileges shielded from discovery:
o Attorney-client privilege
o Spousal privilege
o Doctor-patient privilege
Unless the patient states that they want to kill someone in the future
o Self-incrimination – you may refuse to answer on grounds that the information would incriminate you
o Reporter privilege – a reporter/journalist does not have to reveal his sources
o Accountant privilege
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Discovery exemptions (3)
1. Attorney work product/privilege exemption 2. Client investigatory exemption (Tx) (3) Trade secrets
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Attorney work product/privilege exemption (discovery exemption)
Work Product Privilege – bars discovery of certain materials developed in anticipation of litigation. applies to both outside counsel and in-house counsel
2 types
Ordinary work product – dying man’s testimony may be turned over for discovery
Opinion work product – attorney’s professional opinion about how he is going to approach the case is never discoverable
2 types of immunity
Absolute Immunity –
Qualified immunity –
The burden rests on the one who would invade the party’s privacy to establish adequate reasons to justify production through a subpoena or court order
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CLIENT investigatory exemption ( discovery exemption)
Expansion of work product privilege where an in-house investigation does not have to be turned over for discovery if it is anticipated for litigation
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o Trade secrets
any proprietary secrets are barred from public disclosure
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Absolute immunity (ATTNY work Product
provides absolute protection against disclosure of the mental impressions, conclusions, opinions or legal theories of a party’s attorney or other representative concerning the litigation
209
qualified immunity attny work prod
Policy against invading the privacy of an attorney’s course of preparation for trial
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• Objections to discovery:
o Parties who receive discovery requests that are beyond the scope of discovery can either object to the requests or request a protective order
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When discovery is objected to, party requesting discovery can:
Abandon or refrain from the discovery request or
| Bring the dispute to the attention of the court by filing a motion to compel
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Mandatory dosclousures
1. Witnesses with discoverable information 2. Docs (copies)
3. Statements by witnesses (to parties lawyers; both parties and non parties)
4. ID and location of person having knowledge of any discoverable matter (occurrence witnesses) are discoverable
5. Experts to be called at trial (must do t his autmotaically)
6. Experts retained by counsel, but not to be called at trial.
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Expert witnsses (called) must:
The expert must prepare and sign a report containing: (1) the expert’s opinions, and the basis for them; (2) the data considered by the expert; (3) any exhibits to be used by the expert at trial; (4) the expert’s qualifications; (5) her compensation, and (6) the names of all other cases in which she testified as an expert in the preceding 4 years
The expert who will be called at trial must also be available for deposition by the other side
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Expert witnesses (not called)
Discovery concerning that expert (her identity, knowledge, and opinions) may be discovered only upon a showing of exceptional circumstances making it impracticable for the party seeking discovery to obtain the information by other means
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Duty to sup discovery
o A party must supplement a discovery response with any information that would have been subject to the mandatory disclosure requirement.
o A party who makes a disclosure during discovery now normally has a duty to supplement that response if the party then learns that the disclosed information is incomplete or incorrect
o Failure to comply may lead to the exclusion of that evidence at trial.
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Discovery Devices: I really smell onions with pickle relish
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Interrogatories-
Requests to produce docs or inspect
Oral depo
Written Depo
Requests for admission
Physcial and mental exam
Subpoenas
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o Interrogatories
is a set of written questions that must be answered in writing by another party under oath
218
o Requests to produce documents or inspect
The person seeking discovery may ask the other party in the lawsuit to produce documents or property for inspection and copying; those which are in her possession, custody, or control
219
o Oral Depositions
– permits the direct questioning of a party or witness under oath; questioning must be within the scope of discovery (cannot ask them anything); witness is called a deponent and is given an opportunity to review the transcript and make technical corrections
220
o Written Depositions
– Any party may take the oral responses to written questions , from any person (party or nonparty), that are sworn under oath
221
o Requests for admission
– One party may serve upon another party a written request for the admission, for the purposes of the pending action only, of the truth of any discoverable matters. Requests the party to admit or deny the truth of certain statements within the scope of discovery
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o Physical and mental examinations
When a party’s mental or physical condition is in controversy, the court may order the party to submit to a physical or mental exam by a suitably licensed or certified examiner; The discovering party must make a motion upon notice to the party to be examined, and the court requires a showing of “good cause” for why the exam is needed
223
o Subpoenas
if a non-party is to be deposed, then the discovering party can compel them to appear by issuing a subpoena (cannot be used against a party to the lawsuit
224
Orders (discovery)
The court may order abuse of discovery stopped (a protective order) or may order a party to furnish discovery (order compelling discovery)
225
Orders (discovery) granted if:
if the discoveree fails to: (1) answer a written or oral deposition question; (2) answer an interrogatory; (3) produce documents, or allow an inspection; (4) designate an officer to answer deposition questions, if the discoveree is a corporation
226
Sanctions (discovery)
can be awarded for failing to handle discovery properly; the court may require the discoveree to pay the reasonable expenses the other party incurred in obtaining the order
227
Objection (discovery)
– a party may object to a discovery request the same way a question at trial may be objected to. Typical grounds are that the matter sought is not within the scope of discovery (i.e. not relevant to the subject matter or it is privileged)
228
• FRCP 56 Summary Judgment
o Movant’s burden – No genuine issue of material fact and the movant is entitled to judgment as a matter of law
o Purpose is to reduce cost and avoid delay
o D can attack P’s claim using some evidence that negates/disproves at least one essential claim
A finding that the P cannot prove one essential element of its claim necessarily renders all other elements immaterial and results in summary judgment for the D.
229
SUm Judgment Timing
(unless state law says otherwise)
A party may move for summary judgment at any time until 30 days after the close of all discovery
A party opposing a motion for summary judgment must file a response within 21 days after the motion is served or a responsive pleading is due, whichever is later
A reply by the movant may be filed within 14 days after the response is served
230
o All matters in the motion are construed (Sum judgment)
construed in the light most favorable to the nonmovant
231
Supporting evidence (sum judgment)
Ps may not rely on allegations in the complaint to defeat a motion for summary judgment
P must produce specific evidence in support of each element of its cause of action.
P may offer affidavits and/or evidence obtained during discovery.
P may not rely on evidence that will be inadmissible at trial to satisfy burden.
• Ex: the inadmissibility of an affidavit that contains hearsay would be remedied by hearsay exception of presentation of the witness who made the statement.
P may not rely on evidence that no rational fact finder would believe or would find sufficient to establish the element.
• Ex: if the only expert testimony offered by the P is “implausible” a court will enter summary judgment on behalf of the D.
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o Rule 56(f): Allows a summary judgment motion to be denied, or the hearing on the motion to be continued
if the non-movant has not had the opportunity to make full discovery and needs additional time
233
• FRCP 41(a) Voluntary Dismissal
o P files a “nonsuit”
o P in federal court may voluntarily dismiss her complaint without prejudice any time before D serves an answer or moves for summary judgment. The fact that the dismissal is “without prejudice” means that she may bring the suit again
o Only the first dismissal of the claim is without prejudice
o After D has answered or moved for summary judgment, P may no longer automatically make a voluntary dismissal. Instead, P must get the court’s approval.
234
• FRCP 41(b) Involuntary Dismissal & examples:
o P’s claim may also be involuntarily dismissed by court order. Examples are:
P’s failure to prosecute
P’s failure to obey court orders
Lack of jurisdiction or venue
P’s failure to join an indispensable party
Dismissal for failure to state a claim – the party against whom the claim is alleged (D) may move to dismiss for failure to state a claim if P’s complaint fails to allege that D is responsible
235
o Normally an involuntary dismissal
is with prejudice (final; cannot bring suit again).
236
o Dismissals that are without prejudice:
Dismissal for lack of jurisdiction, of both parties and subject matter, or for insufficient service
Improper venue
Failure to join and indispensable party under Rule 19
237
• FRCP 41(b) Involuntary Dismissal & examples:
o -P’s claim may also be involuntarily dismissed by court order. Examples are:
- P’s failure to prosecute
- P’s failure to obey court orders
- Lack of jurisdiction or venue
- P’s failure to join an indispensable party
- Dismissal for failure to state a claim – the party against whom the claim is alleged (D) may move to dismiss for failure to state a claim if P’s complaint fails to allege that D is responsible
238
o Dismissals that are without prejudice:
-Dismissal for lack of jurisdiction, of both parties and subject matter, or for insufficient service
-Improper venue
-Failure to join and indispensable party under Rule 19
239
Trial by Jury
• Guaranteed by the Seventh Amendment
• Equitable actions are not triable by a jury as a matter of right.
• In determining whether a right to jury trial exists, the court will consider:
o Whether the claim more closely resembles actions in law or in equity; and
o Whether the remedy sought is legal or equitable in nature
240
WAIVER OF TRIAL BY JURY
o The right to a jury trial may be lost by failing to make a timely jury demand (FRCP 38)
o The demand for a jury trial must be made within 14 days after the service of the last pleading directed to the triable issue
o Failure to make a demand when ordered will constitute waiver (FRCP 81)
241
• Jury Selection
o Juries are composed of 12 members (FRCP 48 provides that a jury of at least 6 members will be seated)
o Voir dire
242
Voir Dire
(FRCP 47) – the process by which the federal jury is selected; consists of oral questions by both sides’ counsel to the prospective jurors which are designed to discover whether the juror would be biased, or has connections with a party or prospective witness; used to discover the qualifications of an expert witness; used to determine the fact witnesses mental competence as to the facts of the case (did they actually see it or just hear it?)
243
Peremptory Challenge (voir dire)
-In federal court, each party may exercise 3 peremptory challenges to excuse jurors without having to state the reason before the court
-May not be used to exclude based on race or gender
-May be objected to by the opposing party where the exclusion appears to be discriminatory
244
Burden of Proof (2)
Moving party has two types of burden 1. Burden of persuasion 2. Burden of production
245
1. Burden of persuasion
each party will try to persuade the trier of fact that its evidence is more weighty than the other’s. If P has the burden of persuasion and does not convince the jury (or the judge in a bench trial) by the standard of proof required, the jury must rule for D
246
Burden of persuasion (3 common standards)
(1) preponderance of the evidence (more than 50%)
(2) clear and convincing evidence, and
(3) beyond a reasonable doubt
247
2. Burden if Production
burden of going forward; P is responsible for producing a certain threshold amount of evidence to support every element of his claim; one has met the burden of production if he has produced enough evidence for a reasonable jury to decide in his favor; if the burden of production has failed to produce enough evidence, a summary judgment motion (prior to trial) or a motion for judgment as a matter of law (at trial) will be granted.
248
Shifting burdens
Ex: employment discrimination cases where the employee must make out a prima facie case (burden of production) that there was discrimination. Then the burden of production shifts to the employer, who must produce a nondiscriminatory reason before the jury or lose for failing to meet its burden,
249
Post Trial Motions (6)
1. • FRCP 50(a) Judgment as a Matter of Law 2. • FRCP 50(b) Renewed Motion for Judgment as a Matter of Law 3. • FCRP 59 Motion for New Trial 4. o Remittitur: 5. Additur 6. • FRCP 60 Relief from Judgment or Order
250
• FRCP 50(a) Judgment as a Matter of Law
Law (formally Directed Verdict)
o JMOL may be granted only after the nonmoving party has been fully heard on the matter.
o Evidence viewed in light most favorable to the nonmovant
o The court must find that a reasonable jury would not have a legally sufficient basis to find for the party on that issue and the judge may enter JMOL
o May be made at any time after all nonmovant’s evidence has been submitted but before the case is submitted to the jury
251
• FRCP 50(b) Renewed Motion for Judgment as a Matter of Law
(formally Judgment Notwithstanding the Verdict)
o Once the case has been submitted to the jury and the jurors have entered judgment against one party, that party against whom judgment was entered can move for JNOV if the judgment was based upon a verdict that reasonable persons could not have reached and if the moving party had sought a directed verdict at the close of all the evidence (the judge may set aside the jury’s verdict and enter judgment for the verdict-loser). It must be filed no later than 28 days after entry of judgment
o Exam tip: The court may not entertain a renewed motion for JNOV unless a motion for JMOL was made during trial
252
• FCRP 59 Motion for New Trial
o A new trial may be granted to all or any of the parties on all or some of the issues litigated at trial.
o Motions for New Trial are appropriate in the following instances:
-Newly discovered evidence after the trial
- Trial error – to avoid an inevitable appeal and reversal if the trial judge has committed reversible error (ex: admitting/excluding evidence, giving wrong jury instructions)
- Misconduct – by the jury, bailiff (does not have to be intentional, it can be innocent)
- Jury verdict is against the great weight of the evidence – when a jury verdict is so excessive or inadequate as to demonstrate that the jury has misunderstood its duty or has acted with extreme prejudice
253
o Remittitur
a motion asking the judge to reduce the award of damages that are excessive
254
o Additur:
a motion asking the judge to increase the award of damages (unconstitutional in federal court
255
• FRCP 60 Relief from Judgment or Order
o The court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
-mistake, inadvertence, surprise, or excusable neglect;
-newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
-fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
-the judgment is void;
-the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
-any other reason that justifies relief
256
• Final Judgment Rule
Congress has given to the federal courts SMJ over appeals from all final decisions of the federal district courts (you cannot file an appeal until a final judgment disposes of all issues as to all of the parties)
257
• Review of Errors at Trial
o Restrictions on what is reviewable – Courts will not review errors that are not on the record of the trial court proceeding
- Ex: if appellant didn’t raise or object to an error at a time when the trial court had the opportunity to correct it, the issue is not preserved and is not reviewable.
o Errors that don’t affect substantial rights will be labeled harmless and may be unreviewable.
o Errors will receive different levels of scrutiny upon appellate review depending on the category of error.
- Conclusions of law will typically be reviewed de novo – as if the appellate court were considering the question for the first time.
- Factual findings may be disturbed only if clearly erroneous
- Other determinations by judge will be affirmed unless some indication that the judge abused his discretion.
258
o Exceptions to Final Judgement Rule
• Interlocutory Orders
259
• Interlocutory Orders
taken by courts when a question of law must be answered by an appellate court before a trial may proceed or to prevent irreparable harm from occurring to a person or property during the pendency of a lawsuit or proceeding. Generally, courts are reluctant to make interlocutory orders unless the circumstances surrounding the case are serious and require timely action.
260
• Collateral Order Doctrine
o Appellate review is authorized for an interlocutory order rendered by a trial judge that
- Conclusively determines the disputed question
- Resolves an important issue completely separate from the merits of the action, and
- Is effectively unreviewable on appeal from final judgment.
• Ex: an order determining that a party is immune from certain claims would be reviewable under collateral order doctrine
261
• Injunctive Relief
o 28 U.S.C. § 1292(a)(1) gives federal courts SMJ over appeals from an interlocutory order of the trial court that grants, denies, continues, modifies, or dissolves an injunction.
o Not appealable if a similar suit is pending in state court
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• Certification of Interlocutory Orders
o Federal trial courts can certify an order for appeal when
-The order involves a controlling question of law as to which a substantial ground for difference of opinion exists and
- An immediate appeal from the order may advance the termination of litigation
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o The party seeking appeal must
must apply to the federal courts of appeals, which has discretion to grant or deny the application.
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• Appeal of Interlocutory Order by Extraordinary Writ
o Federal courts of appeals have the power to issue extraordinary writs.
Ex: a party may petition the appellate court to issue a writ of mandamus, thereby permitting an appeal.
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• Multi-claim or multi-party Judgments
o FRCP 54(b): When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities
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• Procedure
o An appeal may be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment appealed from (60 days where the U.S. is a party to the action)
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XIV. PRECLUSION
* Preclusion is the doctrine that limits the re-litigation of issues and claims.
* Res Judicata = things which have been decided
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• Res Judicata = things which have been decided
2 kinds: o Issue Preclusion (Collateral Estoppel
| o Claim Preclusion (Merger & Bar
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o Issue Preclusion (Collateral Estoppel)
– prevents re-litigation of:
(1) same issue of law or fact
(2) actually been litigated in the first action
(3) must have been necessary to the outcome of the first suit
(4) valid and final judgment; and
(5) binding on the party being estopped
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collateral estoppel cant:
* Collateral estoppel may not be used against someone who was not a party to the previous action
* It would violate due process to bind a nonparty (someone not in privity with a party) since that person had not yet had his day in court; The party against whom collateral estoppel is sought to be used must have had a full and fair opportunity to litigate
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Offensive Use (collateral estoppel)
• Issue preclusion no longer requires mutuality of parties. This is aka “offensive collateral estoppel.” It means that a person who was not a party to the first lawsuit can use the results of that action against any person who
o Was a party and
o Had a full and fair opportunity to litigate.
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• Courts are reluctant to permit offensive use of issue preclusion and will base their determination on the following:
o Whether P in the second suit could have easily joined in the first action
o Whether there are procedural opportunities available to D in the second suit that were unavailable in the earlier action
o Whether D had incentive to litigate the issue in the first action
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o Claim Preclusion (Merger & Bar)
Prevents re-litigation of a claim or all claims:
(1) between the same parties and those who are in privity with them
(2) arising out of the same claim (arising out of the same transaction or occurrence)
(3) valid and final judgment (determined on the merits by a court with proper subject matter and personal jurisdiction)
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Merger (claim preclusion)
if P wins the first action, his claim is “merged” into his judgment. He cannot later sue the same D on the same cause of action for higher damages
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Bar (claim preclusion)
– if P loses his first action, his claim is extinguished, and he is “barred” from suing again on that same cause of action
• Ex: P believes D breached a contract with him for $100,000. If P sues for $25,000 and loses, P may not bring a second suit for the other $75,000. The same is true if P wins the $25,000
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Claim preclusion doesn’t apply to certain actions, including -4
* Dismissal on grounds of jurisdiction, venue, or party joinder
* Nonsuit without prejudice
* Where preclusion is denied by statute
* Small claims (in some jurisdictions)
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o Issue v. Claim (preclusion)
claim preclusion applies only where the “claim” in the second action is the same as the one in the first action; collateral estoppel applies as long as any “issue” is the same, even though the causes of action are different
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o Installment contracts:
P must sue at the same time for all payments due at the time the suit is filed. (ex: if T is 6 months late on rent, L must sue for the entire 6 months at once and any months missed that are not sued for when the suit is brought waived. L cannot go back and sue for an additional month)
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• Law of the Case
o The Law of the Case Doctrine is another preclusion device that prevents relitigation of the same issues within the same lawsuit prior to final judgment.
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• Use of Criminal Convictions in Civil Proceedings
o If a D has been convicted of a crime that has an element common to an issue in a subsequent civil proceeding, the conviction may have issue preclusive effect in the civil case, provided that the issue was fully and fairly litigated and was necessarily decided.
o An acquittal is not likely to have issue preclusive effect in a subsequent action, as the burden of proof is more modest in a civil case.
