outline

Question 1

Personal Jurisdiction

Answer 1

Refers to a courts authority over a D

Question 2

Types of Jurisdiction

Answer 2

1. In personam; 2 In Rem; 3. Quasi in re

Question 3

How to get Personam Jurisdiction

Answer 3

Present in the forum state & is personally served (Even if merely passing through)

Question 4

In Personam Service non resident

Answer 4

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)

Question 5

In personam service (resident)

Answer 5

Person is physically present in the state (domiciled) and intends to reamin

Question 6

In personam consent to service

Answer 6

Express & Implied

Question 7

In personam service express consent

Answer 7

Person may expressly consent to personal jurisdiction (forum selection clauses)

Question 8

In personam service implied consent

Answer 8

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

Question 9

In personam waiver

Answer 9

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

Question 10

In personam waiver

Answer 10

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

Question 11

In personam long arm

Answer 11

Permits the court of a state to obtain juris over out-of-state D.

Question 12

In personam Intentional tort rule (long arm)

Answer 12

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

Question 13

In personam long arm applies when:

Answer 13

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

Question 14

In Rem Juridiction

Answer 14

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:

Question 15

In Rem jurisdiction requires:

Answer 15

1. 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

Question 16

IN REM JURISIDCITON no longer domiciled in the forum state is subject to in rem when:

Answer 16

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

Question 17

Types of Jurisdiction (personal)

Answer 17

1. In personam; 2 In Rem; 3. Quasi in re

Question 18

In personam long arm applies when:

Answer 18

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

Question 19

IN REM JURISIDCITON no longer domiciled in the forum state is subject to in rem when:

Answer 19

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

Question 20

Quasi in rem

Answer 20

suit against a non-resident D through their property located within the state

Question 21

Quasi in rem rule:

Answer 21

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)

Question 22

Quasi in rem is:

Answer 22

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)

Question 23

Amenability

Answer 23

Whether D is subject to being sued in that state

Question 24

Specific Jurisdiction

Answer 24

State may exercise jurisdiction where the claim against D arises out of or is related to D’s presence in the forum state

Question 25

Spec Jur: Amenability: Minimum contacts test Def

Answer 25

Must not offend the traditional notions if fair play and substantial justice (Intl show v Was)

Question 26

Spec Jur: Amenability: Min contacts elements

Answer 26

1. Purposeful availmnet 2. Foreseeability 3. Reasonable anticipation of being haled into court 4.Stream of commerce

Question 27

Spec Jurisdiction: Fair and play substantial justice test ( 5 factor balancing test)

Answer 27

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
2. Judicial system’s interest in effective resolution of controversies

Question 28

General Jurisdiction

Answer 28

Continuous and systematic contacts. (Pennoyer v Neff trad test)

Question 29

Gen Jur: Continuous and systematic contacts

Answer 29

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.

Question 30

Gen Jurisdiction: Trad test:

Answer 30

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.

Question 31

Specific Jurisdiction Rule

Answer 31

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

Question 32

Purposeful availment rule

Answer 32

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

Question 33

Choice of forum clause

Answer 33

sets the particular state or court where adjudication will be addressed; parties consent to be subjected to the laws in that forum

Question 34

Choice of Law clause

Answer 34

– 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

Question 35

Foreseeability Rule

Answer 35

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

Question 36

Stream of commerce rule

Answer 36

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

Question 37

Stream of commerce exception

Answer 37

 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)

Question 38

Personal Jurisdiction & the internet (zippo sliding scale test)

Answer 38

• Email sent to a recipient in the forum state may be considered sufficient contacts; -active website; - Passive website

Question 39

Personal Jurisdiction sliding scale test, (Active website)

Answer 39

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

Question 40

Passive Website

Answer 40

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

Question 41

Notice

Answer 41

A separate requirement to obtain personal jurisdiction over D

Question 42

Notice (Forum Law)

Answer 42

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

Question 43

Notice: Suitable age

Answer 43

Flex standard

Question 44

Notice- discretion:

Answer 44

mental capacity (i.e. a child of eldery person)

Question 45

Notice (other person)

Answer 45

Must reside with D, spouse can only be suitable if they live with D.

Question 46

Notice: Actual receipt of notice

Answer 46

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

Question 47

Notice: Waiver-

Answer 47

: 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

Question 48

Notice: Substituted Service

Answer 48

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.)

Question 49

Service on out of staters

Answer 49

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

Question 50

Ways for service on out staters

Answer 50

• 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

Question 51

Notice & Due process

Answer 51

Requires notice and the opportunity to be heard

Question 52

Notice and due process: Mullance v central hannover

Answer 52

 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)

Question 53

Subject matter jurisdiction

Answer 53

Court’s power over a particular type of case and the dollar amount in controversy

Question 54

Sub matter juris: Diversity of citizenship

Answer 54

Must have Article III AND title 28, to have SMJ, SMJ isn’t waiveable

Question 55

Title 28

Answer 55

-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

Question 56

Sub matter: Domicile

Answer 56

Physical presence in the state & Intent to remain there.

Question 57

Corporate citizenship:

Answer 57

1) State of incorporation 2) state of the corporations principal place of business

Question 58

Tests to determine principal place of business

Answer 58

1) Nerve Center Te

Question 59

Tests to determine principal place of business

Answer 59

1) Nerve Center Test

2) Muscle Test (Activites)

Question 60

Nerve Center Test:

Answer 60

Where the corporation makes its executive decisions (its brains)

Question 61

Muscle Test (activies)

Answer 61

Where the corporation does a plurality of its activity (i.e. manufacturing)

Question 62

Partnerships citizenship

Answer 62

Have citizenship of all partners domiciles

Question 63

Unincorporated Associations

Answer 63

• 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

Question 64

Aggregation of claims (1 def)

Answer 64

1 P against 1 Def (Yes) Can aggregate all claims against one D to meet the amount in controversy requirement

Question 65

Agg of claims ( Multiple P’s against 1 Def)

Answer 65

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.

Question 66

Agg of claims: One P v multiple D’s

Answer 66

NO CANGT AGGREGATE

Question 67

Agg of claims: One P v multiple D’s

Answer 67

NO CANT AGGREGATE

Question 68

Alienage Jurisdiction

Answer 68

exists where there is a suit between citizens of a state, on one side, and foreign states or citizens thereof, on the other

Question 69

Resident Alien

Answer 69

an alien who lives in the United States permanently is deemed a citizen of the State in which he is domiciled

Question 70

Alien and U.S Citizes on the same side

Answer 70

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

Question 71

Stateless person residency

Answer 71

individuals who are not a citizen of any country – are not eligible for diversity status

Question 72

When is status of citizenship calculated?

Answer 72

Day the suit is filed

Question 73

Federal Question- Arises under

Answer 73

Title 28: 1. US Constitution 2. Fed Law 3. Treasities

Question 74

Fed Question

Answer 74

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.

Question 75

State question and fed question

Answer 75

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

Question 76

Supplemental Jurisdiction

Answer 76

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

Question 77

Supp Jurisdiction attaching claims:

Answer 77

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.

Question 78

Fed Court sup jurisdiction

Answer 78

o A federal court will not have supplemental jurisdiction if the P is attempting to use supplemental jurisdiction to avoid the diversity requirement.

Question 79

Where does federal have sup jurisdiction

Answer 79

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

Question 80

Fed Court SHOULD NOT exercise sup judgement when:

Answer 80

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

Question 81

Removal

Answer 81

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)

Question 82

Examples of removal

Answer 82

 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.

Question 83

Removal of Multiple Claims: Supp claims

Answer 83

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

Question 84

Removal of Multiple Claims: Separate and Independent Claims

Answer 84

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

Question 85

Categories of Removal

Answer 85

1) Jurisdictional 2) Procedural

Question 86

Removal- Jurisdictional

Answer 86

: 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

Question 87

Removal- Procedural

Answer 87

: 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

Question 88

Removal Procedural subsets

Answer 88

 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

Question 89

Removal Procedure: One Year rule

Answer 89

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

Question 90

Venue

Answer 90

• 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

Question 91

Venue: Diversity Cases

Answer 91

 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

Question 92

Venue: Federal Question cases

Answer 92

 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)

Question 93

Transfer of Venue

Answer 93

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.”

Question 94

When venue is transferred

Answer 94

 The substantive law applied should be the same law that would have been applied by the transferor court

Question 95

Venue transfer Burden:

Answer 95

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

Question 96

In county venue transfer

Answer 96

– gets you to a new location in another state, but the same law will be applied

Question 97

Out of country transfer

Answer 97

you move out of country, you have to apply whatever country’s law you move to

Question 98

Forum Non Conveniens

Answer 98

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

Question 99

P choice of venue

Answer 99

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

Question 100

Three factors courts consider whether to dismiss for forum non conveniens

Answer 100

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)

Question 101

Motion to dismiss for forum non conveniens

Answer 101

, a court should consider both private and public interest factors as a second balancing test

Question 102

Private interest (forum non conveniens)

Answer 102

 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

Question 103

Forum non conveniens (public interest)

Answer 103

 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

Question 104

Choice of Law

Answer 104

Horiztonal/ Vertical

Question 105

Horizontal Choice of law

Answer 105

: 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

Question 106

Vertical Choice of Law

Answer 106

: the choosing of state or federal law based on concepts of federalism found in the U.S. Constitution, federal statutes, and judicial doctrines

Question 107

Choice of law applies:

Answer 107

Substantial choice of law which courts apply their own.

Question 108

Choice of Law: Rule and Decisions Act

Answer 108

): 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.”

Question 109

Rules and decisions act applies to :

Answer 109

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.

Question 110

The Erie Doctrine

Answer 110

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.

Question 111

Erie Doctrine Exception

Answer 111

When the United States is a party to a case, the court does not follow state law; they are bound by federal law

Question 112

Twin aims of Erie:

Answer 112

(1) discourage forum shopping and (2) avoidance of inequitable administration of the laws

Question 113

When to apply state law:

Answer 113

 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

Question 114

When a state hasn’t spoken on the issue at question

Answer 114

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.

Question 115

Conflicting Laws:

Answer 115

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.

Question 116

Rules Enabling Act:

Answer 116

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.

Question 117

Federal rule and conflicting state law

Answer 117

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

Question 118

• Outcome Determinative Test

Answer 118

provides that the Erie Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.

Question 119

When there is diversity juris

Answer 119

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

Question 120

Balance of interests test

Answer 120

: the federal court weighs whether the state or federal judicial system has the greater interest in having its rule applied to the matter

Question 121

When state interest is weak:

Answer 121

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.

Question 122

If rule at issue is procedural and the federal rule on point with state rule:

Answer 122

, then the Federal Rule must be applied as long as it complies with the Rules Enabling Act.

Question 123

If no federal rule on civil procedure

Answer 123

then apply the Byrd test subject to the twin aims of Erie.

Question 124

Diversity Conflict Test:

Answer 124

 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

Question 125

CL pleading

Answer 125

; a writ or order from authority

Question 126

Code pleading

Answer 126

– you have to allege enough evidentiary facts which, if proven with evidence at trial, would constitute proof of that element (it must be perfect)

Question 127

Notice pleading

Answer 127

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

Question 128

• FRCP 8(a) Claim for Relief

Answer 128

– 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

Question 129

• FRCP 8(b) Answering the Complaint

Answer 129

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

Question 130

The answer must be…

Answer 130

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

Question 131

• Rule 8(c) – Affirmative defenses (11)

Answer 131

— contributory negligence
— assumption of risk
— fraud
— statute of limitations
— discharge in bankruptcy
— estoppel
— failure of consideration
— payment
— release
— res judicata
— statute of frauds

Question 132

Failure to plead affirmative defense

Answer 132

waiver

Question 133

• FRCP 9 Heightened Pleading

Answer 133

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.

Question 134

o Pleading special matters include:

Answer 134

 -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

Question 135

• FRCP 12(b)(6) Motion to Dismiss for Failure to State a Claim

Answer 135

Allows the court to test the legal sufficiency of plaintiff’s claim.

Question 136

A court will dismiss a complaint under Rule 12(b)(6) {motion to dismiss for failure to state a claim) if

Answer 136

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.

Question 137

• FRCP 12(a) Time Permitted for a Response

Answer 137

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

Question 138

• FRCP 11(a) : what every motion, and other paper must be

Answer 138

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.”

Question 139

• FRCP 12(b) Objections

Answer 139

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)

Question 140

7 objections

Answer 140

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

Question 141

• FRCP 15(a) Amendments

Answer 141

o Amendment as of Right

o Amendment by Leave of Court

Question 142

o Amendment as of Right

Answer 142

: 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

Question 143

o Amendment by Leave of Court

Answer 143

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

Question 144

• FRCP 15(c) Doctrine of Relation Back

Answer 144

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.

Question 145

• FRCP 15(c) Doctrine of Relation Back example

Answer 145

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.

Question 146

• FRCP 15(d) Supplemental Pleadings

Answer 146

– 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

Question 147

• Provisions to deter frivolous pleadings:

Answer 147

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.

Question 148

o FRCP 23(b)

Answer 148

– 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

Question 149

o Two Burdens of Evidence: (sup pleading)

Answer 149

- P has the burden of going forward with the evidence (P must have testimony, established documents, witnesses)
- Burden of persuasion (to the jury)

Question 150

• FRCP 18 Joinder of Claims

Answer 150

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.

Question 151

o FRCP 19 Compulsory Joinder

Answer 151

 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

Question 152

 When joinder is not feasible

Answer 152

the court must determine whether in equity or good conscience, the action should proceed among the existing parties or should be dismissed.

Question 153

The 4 factors for the court to consider: (when joinder isn’t feasible)

Answer 153

• 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

Question 154

o FRCP 20 Permissive Joinder

Answer 154

 Permissive joinder allows any party to join unrelated claims against existing parties

Question 155

Permissive Joinder (2 types)

Answer 155

 Two types: (1) the right of multiple P’s to join together; and (2) P’s right to make multiple Ds to her claim

Question 156

Permissive Joinder-  Multiple Ps can join in one lawsuit if:

Answer 156

(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

Question 157

 Personal jurisdiction (Permissive Joinder)

Answer 157

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)

Question 158

 Subject matter jurisdiction (Permissive Joinder)

Answer 158

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

Question 159

o FRCP 21 Misjoinder and Nonjoinder of Parties

Answer 159

 The court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.

Question 160

• Impleader or Third Party Practice (FRCP 14)

Answer 160

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

Question 161

Derivative Liability (Impleader)

Answer 161

 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.

Question 162

o The original P may also assert any claims against the TPD (Impleader)

Answer 162

TPD arising out of the transaction or occurrence that is the subject matter of that P’s claim against the TPP

Question 163

o The claim by P against the TPD must (Impleader)

Answer 163

must independently satisfy jurisdictional requirements (SMJ must have diversity between P and TPD, and must exceed $75,000)

Question 164

o Rights of a TPD (IMPLEADER) 5))

Answer 164

• 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.

Question 165

o Dismissal and Separation

Answer 165

 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.

Question 166

• Interpleader

Answer 166

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.

Question 167

o Rule Interpleader (FRCP 22)

Answer 167

 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

Question 168

o Statutory Interpleader (28 U.S.C. 1335)

Answer 168

 Allows a person holding property which is or may be claimed by two or more adverse claimants, to interplead all possible claimants

Question 169

 Jurisdictional Benefits- interpleader

Answer 169

• 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

Question 170

o Difference between Statutory and Rule Interpleader

Answer 170

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.

Question 171

For interpleader there must be:

Answer 171

federal question or complete diversity between the stakeholder and the claimants and $75,000 or more in controversy

Question 172

Interpleader service:

Answer 172

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

Question 173

Intervention

Answer 173

o Where certain parties are not initially part of the lawsuit may enter the suit on their own initiative

Question 174

o Intervention by Right (FRCP 24):

Answer 174

A stranger to an existing action may intervene of right if she meets all of the three following criteria:

Question 175

Intervention by right 3 criteria

Answer 175

 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)

Question 176

o Intervention by Permission

Answer 176

 Where the non-party has a claim or defense that involves a common question of law or fact with the primary action

Question 177

 A permissive intervenor in a diversity case must

Answer 177

must independently meet federal subject matter jurisdiction requirements (i.e. diversity between the intervenor and all Ds)

Question 178

Courts jurisdiction on intervention

Answer 178

o In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

Question 179

• FRCP 13(a) Compulsory Counterclaim

Answer 179

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.

Question 180

Exceptions to compulsory counterclaim

Answer 180

– 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)

Question 181

• FRCP 13(b) Permissive Counterclaim

Answer 181

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))

Question 182

o Counterclaim supplemental jurisdiction

Answer 182

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)

Question 183

• Crossclaim

Answer 183

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

Question 184

VIII. CLASS ACTIONS

Answer 184

• 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.

Question 185

Prerequisites to class action (4)

Answer 185

1. Numerosity 2. Commonality 3. Typicality 4. Adequacy of Rep

Question 186

1. Numerosity ( Class act prereq

Answer 186

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

Question 187

2. Commonality ( Class act prereq)

Answer 187

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

Question 188

3 Typicality (Class action prereq)

Answer 188

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)

Question 189

4. adequacy OF REP ( PREEQ FOR C)LASS ACTION

Answer 189

– 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

Question 190

• FRCP 23(b) Types of Class Actions

Answer 190

3 types

Question 191

Class action type 1:

Answer 191

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

Question 192

Class action type 2

Answer 192

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

Question 193

Class action type 3

Answer 193

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

Question 194

Four factors to decide controversy in type 3 of class action

Answer 194

(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

Question 195

Notice of Class action

Answer 195

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

Question 196

o For classes certified as a result of common questions of law or fact, the notice must include: (6)

Answer 196

	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)

Question 197

• Class Action Fairness Act (CAFA)

o Expands federal SMJ to include classes where:

Answer 197

	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

Question 198

o Exceptions – CAFA does not apply to:

Answer 198

 Local controversies

 Certain civil rights and other categories of cases

Question 199

Purpose of Discovery (7)

Answer 199

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)

Question 200

scope of discovery

Answer 200

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.”

Question 201

o A party is entitled to demand the discovery of any matter that is

Answer 201

 Not unreasonably cumulative or burdensome;

 Relevant to the claim or defense of any party;

Question 202

• If the requested info can be obtained from another source that is more convenient, less burdensome, or less expensive

Answer 202

, a party may be required to obtain it from the other source

Question 203

• Privileges shielded from discovery:

Answer 203

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

Question 204

Discovery exemptions (3)

Answer 204

1. Attorney work product/privilege exemption 2. Client investigatory exemption (Tx) (3) Trade secrets

Question 205

Attorney work product/privilege exemption (discovery exemption)

Answer 205

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

Question 206

CLIENT investigatory exemption ( discovery exemption)

Answer 206

 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

Question 207

o Trade secrets

Answer 207

any proprietary secrets are barred from public disclosure

Question 208

Absolute immunity (ATTNY work Product

Answer 208

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

Question 209

qualified immunity attny work prod

Answer 209

Policy against invading the privacy of an attorney’s course of preparation for trial


Question 210

• Objections to discovery:

Answer 210

o Parties who receive discovery requests that are beyond the scope of discovery can either object to the requests or request a protective order

Question 211

When discovery is objected to, party requesting discovery can:

Answer 211

 Abandon or refrain from the discovery request or

 Bring the dispute to the attention of the court by filing a motion to compel

Question 212

Mandatory dosclousures

Answer 212

1. Witnesses with discoverable information 2. Docs (copies)
2. Statements by witnesses (to parties lawyers; both parties and non parties)
3. ID and location of person having knowledge of any discoverable matter (occurrence witnesses) are discoverable
4. Experts to be called at trial (must do t his autmotaically)
5. Experts retained by counsel, but not to be called at trial.

Question 213

Expert witnsses (called) must:

Answer 213

 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

Question 214

Expert witnesses (not called)

Answer 214

 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

Question 215

Duty to sup discovery

Answer 215

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.

Question 216

Discovery Devices: I really smell onions with pickle relish

Answer 216

Interrogatories-
Requests to produce docs or inspect
Oral depo
Written Depo
Requests for admission
Physcial and mental exam
Subpoenas

Question 217

o Interrogatories

Answer 217

is a set of written questions that must be answered in writing by another party under oath

Question 218

o Requests to produce documents or inspect

Answer 218

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

Question 219

o Oral Depositions

Answer 219

– 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

Question 220

o Written Depositions

Answer 220

– Any party may take the oral responses to written questions , from any person (party or nonparty), that are sworn under oath

Question 221

o Requests for admission

Answer 221

– 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

Question 222

o Physical and mental examinations

Answer 222

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

Question 223

o Subpoenas

Answer 223

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

Question 224

Orders (discovery)

Answer 224

The court may order abuse of discovery stopped (a protective order) or may order a party to furnish discovery (order compelling discovery)

Question 225

Orders (discovery) granted if:

Answer 225

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

Question 226

Sanctions (discovery)

Answer 226

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

Question 227

Objection (discovery)

Answer 227

– 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)

Question 228

• FRCP 56 Summary Judgment

Answer 228

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.

Question 229

SUm Judgment Timing

Answer 229

(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

Question 230

o All matters in the motion are construed (Sum judgment)

Answer 230

construed in the light most favorable to the nonmovant

Question 231

Supporting evidence (sum judgment)

Answer 231

 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.

Question 232

o Rule 56(f): Allows a summary judgment motion to be denied, or the hearing on the motion to be continued

Answer 232

if the non-movant has not had the opportunity to make full discovery and needs additional time

Question 233

• FRCP 41(a) Voluntary Dismissal

Answer 233

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.

Question 234

• FRCP 41(b) Involuntary Dismissal & examples:

Answer 234

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

Question 235

o Normally an involuntary dismissal

Answer 235

is with prejudice (final; cannot bring suit again).

Question 236

o Dismissals that are without prejudice:

Answer 236

 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

Question 237

• FRCP 41(b) Involuntary Dismissal & examples:

Answer 237

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

Question 238

o Dismissals that are without prejudice:

Answer 238

 -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

Question 239

Trial by Jury

Answer 239

• 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

Question 240

WAIVER OF TRIAL BY JURY

Answer 240

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)

Question 241

• Jury Selection

Answer 241

o Juries are composed of 12 members (FRCP 48 provides that a jury of at least 6 members will be seated)
o Voir dire

Question 242

Voir Dire

Answer 242

(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?)

Question 243

Peremptory Challenge (voir dire)

Answer 243

 -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

Question 244

Burden of Proof (2)

Answer 244

Moving party has two types of burden 1. Burden of persuasion 2. Burden of production

Question 245

1. Burden of persuasion

Answer 245

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

Question 246

Burden of persuasion (3 common standards)

Answer 246

(1) preponderance of the evidence (more than 50%)
(2) clear and convincing evidence, and
(3) beyond a reasonable doubt

Question 247

2. Burden if Production

Answer 247

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.

Question 248

Shifting burdens

Answer 248

 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,

Question 249

Post Trial Motions (6)

Answer 249

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

Question 250

• FRCP 50(a) Judgment as a Matter of Law

Answer 250

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

Question 251

• FRCP 50(b) Renewed Motion for Judgment as a Matter of Law

Answer 251

(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

Question 252

• FCRP 59 Motion for New Trial

Answer 252

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

Question 253

o Remittitur

Answer 253

a motion asking the judge to reduce the award of damages that are excessive

Question 254

o Additur:

Answer 254

a motion asking the judge to increase the award of damages (unconstitutional in federal court

Question 255

• FRCP 60 Relief from Judgment or Order

Answer 255

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

Question 256

• Final Judgment Rule

Answer 256

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)

Question 257

• Review of Errors at Trial

Answer 257

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.

Question 258

o Exceptions to Final Judgement Rule

Answer 258

• Interlocutory Orders

Question 259

• Interlocutory Orders

Answer 259

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.

Question 260

• Collateral Order Doctrine

Answer 260

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

Question 261

• Injunctive Relief

Answer 261

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

Question 262

• Certification of Interlocutory Orders

Answer 262

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

Question 263

o The party seeking appeal must

Answer 263

must apply to the federal courts of appeals, which has discretion to grant or deny the application.

Question 264

• Appeal of Interlocutory Order by Extraordinary Writ

Answer 264

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.

Question 265

• Multi-claim or multi-party Judgments

Answer 265

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

Question 266

• Procedure

Answer 266

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)

Question 267

XIV. PRECLUSION

Answer 267

• Preclusion is the doctrine that limits the re-litigation of issues and claims.
• Res Judicata = things which have been decided

Question 268

• Res Judicata = things which have been decided

Answer 268

2 kinds: o Issue Preclusion (Collateral Estoppel

o Claim Preclusion (Merger & Bar

Question 269

o Issue Preclusion (Collateral Estoppel)

Answer 269

– 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

Question 270

collateral estoppel cant:

Answer 270

• 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

Question 271

 Offensive Use (collateral estoppel)

Answer 271

• 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.

Question 272

• Courts are reluctant to permit offensive use of issue preclusion and will base their determination on the following:

Answer 272

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

Question 273

o Claim Preclusion (Merger & Bar)

Answer 273

 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)

Question 274

 Merger (claim preclusion)

Answer 274

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

Question 275

 Bar (claim preclusion)

Answer 275

– 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

Question 276

 Claim preclusion doesn’t apply to certain actions, including -4

Answer 276

• Dismissal on grounds of jurisdiction, venue, or party joinder
• Nonsuit without prejudice
• Where preclusion is denied by statute
• Small claims (in some jurisdictions)

Question 277

o Issue v. Claim (preclusion)

Answer 277

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

Question 278

o Installment contracts:

Answer 278

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)

Question 279

• Law of the Case

Answer 279

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.

Question 280

• Use of Criminal Convictions in Civil Proceedings

Answer 280

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.