All of em COPY

Question 1

Pleading Special Matters

Rule 9(b)

Answer 1

Fraud or Mistake; Conditions of Mind:

• In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.
• Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

Question 2

Interpleader

Rule 22

(5 elements)

Answer 2

Interpleader

• All JD rules are liberalized (nationwide PJ)
• Rule 19 mandatory more stringent (tests)
• 2+ adverse claimants
• π/▲ may trigger interpleader if it risks being exposed to double or multiple liability; (stakeholder need not demonstrate merits, only good faith concern)
• If stakeholder doesn’t care about the property, it can be removed from the interpleader and let the others fight it out
• Equitable device that allows an individual to confront multiple claims involving a fund or piece of property in a single proceeding.
• Avoids multiple liability, inconsistent judgments, multiple lawsuits in different courts

(a) Grounds.
(1) Persons with claims that may expose a π to double or multiple liability may be joined as ▲ and required to interplead. Joinder for interpleader is proper even though:

(A) the claims of the several claimants don’t have to be identical

(B) the plaintiff denies liability in whole or in part to any or all of the claimants.

(2) A ▲ exposed to similar liability may seek interpleader through a crossclaim or counterclaim.

Question 3

Rule 60(b)

(7 elements)

Motion for Relief from Judgement

Answer 3

Relief from Judgement

1. Mistake, inadvertence, surprise, excusable neglect
2. Newly discovered evidence that with reasonable diligence couldn’t have been discovered in time for a new trial motion
3. Fraud
4. Judgment is void
5. Judgment has been satisfied, released, discharged; is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable
6. any other reason justifying relief

Deadline: reasonable time, except 1, 2, 3 require motion within one year

Question 4

Peremptory Challenges

Answer 4

1. Counsel gets 3, do not need cause unless Batson discrimination.
2. Dismissal with cause if juror works for GM and GM is a party.

Question 5

Guaranty Trust v. York

(1 main question)

Answer 5

• A federal court, exercising jurisdiction based strictly on diversity of citizenship, must abide by any state legal rule that would be outcome determinative if held in state court.
• Case deciding whether to use statute of limitations (SOL) of New York state or federal SOL.
• Would application of the state rule significantly effect the outcome?
• Justice Frankfurter: Erie applies. Federal courts cannot be used to circumvent state laws.
• Whether the outcome would be effected is determinative!

Question 6

Stare Decisis

(3 elements)

Answer 6

1. Only to holding, not dictum
2. Prior case must be sufficiently similar
3. Only applies to cases within its hierarchy (e.g., ND Cal bound by 9th Cir, US Sup Ct but not D Mass) but other cases may have persuasive force; also binding in Erie situations when decision of highest state court is on point

Question 7

Counterclaims

(2 elements)

Answer 7

Rule 13(a)

• compulsory = T/O
  
  • use it or lose it
  • for protection of π

Rule 13(b)

• permissive = your choice

Question 8

Rocky v. King

Answer 8

Mootness

The problem in the case was that Rocky was removed from field work—the subject of his complaint—about a month before moving for class certification. The court held that Rocky’s case—which sought only declaratory and injunctive relief—had become moot.

If he would have gone for $ damages he could have proceeded :(

Question 9

Preclusion in Class Actions/Premier Elec. Constr. Co.

Answer 9

When a class member opts out of a class action, the member who opted out cannot claim the benefit of a victory by the class under issue preclusion principles. (In Premier, the class member who opted out was not allowed to rely on a ruling favorable to the class that the defendant violated federal antitrust laws. The court did note, however, that the ruling in the class action was relevant as a matter of stare decisis.)

Question 10

Kescoli v. Babbitt

(2 or so elements)

Answer 10

The court first found that the Navajo Nation and Hopi Tribe—which were not parties to the suit—were necessary because the settlement at issue impacted royalties received by them, and they had an interest in ensuring that a proper balance was maintained between the receipt of royalties and the preservation of their sacred sites. Because they were immune from suit as a result of their sovereign status, the Navajo Nation and Hopi Tribe could not be joined against their will. Finding that the action could not proceed without them, the court concluded that they were indispensable –> must dismiss

Question 11

Dismissal of Actions

Rule 41

(2 elements)

Answer 11

(a) Voluntary dismissal
* by π, w/o prejudice unless previously voluntarily dismissed
(b) Involuntary dismissal

• by ▲, with prejudice (unless PJ, venue, 12(b)(6))
• if too late = res judicata

Question 12

Aggregation types

Answer 12

1. Permissive Joinder: of π/▲(Rule 19)
2. Mandatory Joinder: (Rule 19)
3. Impleader: A v B –> (B brings C) (Rule 14)
4. Intervention: A v B (C wants to join) (Rule 24)
5. Interpleader: (Rule 22)

Question 13

Anderson v. Bessemer City

Answer 13

City was looking to hire a new recreation director; eight persons applied (only one woman, petitioner); five member committee – four were men

Title VII sex discrimination – 2 day trial; court ruled in favor of plaintiff; petitioner’s counsel submitted lengthy findings, including subsidiary findings;

trial court found petitioner was better qualified than the person selected; she had more breadth of experience; male committee members were biased against her because she was a woman; she was only one asked about whether her husband would approve of her applying; although Ms. Boone made a similar comment to person who got job, she said (and court agreed) it was a facetious remark; court found reasons offered by male committee members were pretextual; court awarded backpay and attorneys’ fees.

4th Cir reversed; found 3 out of 4 critical findings clearly erroneous

Supreme Court held:

• Finding of intentional discrimination is a finding of fact subject to clearly erroneous review.
• Definition of clearly erroneous: reviewing court left with the definite and firm conviction that a mistake has been made.
• Can’t reverse just because appellate court would have decided the case differently.
• Rationale for deference: duplication of effort contributes only negligibly to accuracy of fact determination; trial is the main event.
• Applies to tangible evidence; where credibility is at issue, even greater deference is warranted.

Here 4th Circuit reweighed the evidence.

Question 14

Appeal

Answer 14

1. Rule 60
2. §1291
3. §1292(a)(2)
4. Rule 54(b)
5. Mandamus
6. Collateral Order
7. Standards of Review
8. Supreme Court Certiorari Review

Question 15

Motion for Judgement as a Matter of Law

Rule 50

(3 elements)

Answer 15

Directed Verdict

Rule 50(a)(1) directs court to grant motion for judgment as a matter of law

• result is against reason (rule 50) v “something went wrong here” (rule 59)
• if “a reasonable jury would not have a legally sufficient evidentiary basis to find for the non-moving party on an issue.”
• Motion may be made before submission of the case to the jury and
• is often made by defendant at the close of plaintiff’s case and again at the close of all the evidence.
• Res judicata
• Only one ground: insufficiency of evidence

(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
(c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial.
(1) In General. If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial.
(2) Effect of a Conditional Ruling. Conditionally granting the motion for a new trial does not affect the judgment’s finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders.
(d) Time for a Losing Party’s New-Trial Motion. Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment.
(e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal. If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment.

Question 16

Judgement on Multiple CLAIMS/PARTIES

Rule 54(b)

(4 elements)

Answer 16

(b) Judgment on Multiple Claims or Involving Multiple Parties.

• 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 17

Weisgram v. Marley & Co

(1 main takeaway)

Answer 17

• An appellate court may direct judgment as a matter of law when it determines that evidence was erroneously admitted at trial, and the remaining evidence does not make out a sustainable case.

Plaintiff won jury verdict in products liability case; defendant unsuccessfully objected to expert testimony about a defect in heater that caused fire; defendant was unsuccessful in getting judgment as a matter of law or a new trial motion. 8th Cir held that plaintiff’s expert evidence was inadmissible. Without that evidence, a rational factfinder could not find for plaintiff. 8th Cir. determined that it could enter judgment on its own and did not have to remand so district court could decide between judgment as a matter of law or new trial.

Supreme Court held that if the appellate court decides that the district court is in best position to rule on judgment as a matter of law v. new trial, it should send it back; but the court of appeals can decide issue itself.

Question 18

How to transfer to case brought in state court to another state…

Answer 18

1. Remove to federal court
2. §1404 (cannot be dismissed) (§1406 and §1391 do not apply)

Question 19

Collateral Order Doctrine

(3 elements)

Answer 19

Order must:

1. Conclusively determine the disputed question (not a tentative ruling or one likely to be reconsidered);
2. Resolve an important issue separate from the merits: needs to be collateral and must be important.

E.g., validity of a law requiring plaintiffs to post a bond as a condition to suit; a ruling against defendant on immunity

3. The issue must be effectively unreviewable on appeal from a final judgment. (For instance, immunity from suit is undermined if the party has to go through a trial before getting a ruling that he or she is immune.)

Question 20

Latino v. Kaizer

Answer 20

Latino and Slawinski sued City of Chicago and two offers after arrest for scalping tickets at Chicago Bulls game. Court held it was not proper for the trial judge to set aside the verdict and grant a new trial merely because the trial judge thought the officers were not telling the truth. Except in extreme cases, credibility is for the jury.

Question 21

Mullinex Chart

Answer 21

Assault: A v B

Step 1: What do you have to produce with motion for ΣJ?

• A moves: Evidence (π rarely wins ΣJ)
• B moves: Evidence - point to insufficiency of evidence in the record

Step 2: What do you produce in response?

• B opposes: Evidence - genuine issue of material fact. Rule 56(a)(2)
• A opposes: Evidence - Rule 56(d)(2)

Step 3: Is there an issue of material fact for trial?

Question 22

Rules Governing Diversity of Citizenship

(4 elements)

Answer 22

1. Corporation: state of Inc., PPB (Hertz defines as “nerve center,” meaning that “the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities”)
2. Individual: domicile
   a. Old domicile exists until new one is clearly formed
   b. Factors to consider in determining domicile include where a person exercises political rights, pays taxes, owns real/personal property, has driver’s license, has bank accounts, attends church, has place of employment, where family is, etc.
   c. Appellate court => deference => district court ruling on domicile unless clearly erroneous.
3. For a dual citizen:
   a. Diversity jurisdiction can be invoked only when a dual citizen’s US domicile is diverse from the opponent’s domicile (Coury)
   b. US citizen domiciled abroad =/= citizen of any state =/= diversity
4. Complete diversity required (unless statute says otherwise)

Question 23

Voluntary Dismissal

(3 elements)

Answer 23

1. Plaintiff’s choice
2. Plaintiff wants to dismiss and start over; normally can terminate by filing notice of dismissal before answer or motion for summary judgment. Even after that, can do so by stipulation of dismissal signed by all parties
3. Otherwise, court approval required for dismissal

Question 24

Venue…

§1391(c) - residency

§1391(d) - corp in state w/ multi districts

§1391(e) - US officer or employee

Answer 24

§1391(c) Residency:

1) individual = domicile
2) entity ▲ = any district with PJ; entity π = only PPB
3) ▲ non-resident = any district (does not affect joinder)

§1391(d) - corporations in states with multiple districts:

resides in any district in state where = PJ (PPB, Inc, sufficient contacts), and if not such contacts, district with most significant contacts

§1391(e) - ▲ is US or US officer, employee, agent

Civil action may be brought where

(1) a defendant resides,
(2) a substantial part of the events occurred (or substantial part of property is located), or
(3) where plaintiff resides, if no real property is involved.

Where officials are being sued in their individual capacity, not their official capacity, then 1391(b) applies, not (e) [Coltrane]

Question 25

Final Judgement Rule §1291

(3 elements + TEST)

Answer 25

Final Judgement Rule - right to appeal final judgements

Purposes:

• Efficiency: one appeal; interlocutory rulings may become irrelevant (e.g., party objects to admission of evidence but ends up winning the case);
• saves time of appellate judges,
• speeds up the resolution of the case.

TEST:

• After making this order, does the district court have anything left to do on the merits of the case?
  
  • Does not include determination of attorney fees, motion to recover costs, etc..
  • Case is final when nothing remains to be done, except perhaps for the award of attorneys’ fees and costs.

File Notice of Appeal in the DISTRICT COURT within 30 days of entry of final judgement.

Question 26

Scope of Discovery

Rule 26(b)(1) TEST

(4 elements)

Answer 26

Scope of discovery:

• Not privileged,
• relevant to the SM involved,
• relates to the claim or defense of any party,
• need not be admissible at trial if appears that it could lead to admissible discovery.

Question 27

Marcus v. BMW

Answer 27

Claim that Bridgestone run-flats are defective; Marcus’s class involved BMWs with Bridgestone RFTs sold or leased in New Jersey where tires have gone flat and have been replaced. Marcus is NY resident; leased 2007 BMW; had four flat tires that failed but in two instances he ran over sharp objects

NJ district court granted class cert for NJ subclass for various claims.

Standard: class cert – abuse of discretion.

Class Definition (objective): Must be clear and concise definition of parameters of the class.

• Here, Marcus says intent was to include only owners and lessees of new BMWs purchased or leased in NJ from BMW dealerships with Bridgestone RFTs. But post hoc clarification is not sufficient.

Class Definition (ascertainability): Must be able to identify class members without individual fact finding or mini trials.

• Here BMW doesn’t know which cars it sold had run flat tires; even if a particular car came to the lot with RFT, may have left with different tires; and not clear which ones had gone flat and been replaced.
• Need reliable, administratively feasible approach. Court allows Marcus to address the issue further on remand. Court suggests a due process concern about using affidavits from putative class members.

Numerosity: so numerous that joinder is impracticable

• No evidence of how many BMWs purchased or leased in NJ with Bridgestone RFTs have gone flat and been replaced. Thus, numerosity is not satisfied.

Commonality:

Common issues of law and fact exist: whether the tires are defective, duty to disclose defects, common claims.

Typicality: Met here

Plaintiff’s claims must arise from same event, practice or course of conduct giving rise to the claims

• Marcus supposedly did little research before buying car but that doesn’t make him atypical; not a problem that Marcus leased only one model BMW with only one kind of RFT; unclear how Marcus’s issues will constitute major focus of litigation (unique defenses); neither side has shown how any defenses unique to Marcus will be major focus of BWM and Bridgestone.

Predominance: Causation concerns – a tire can go flat for a variety of reasons;

• illustrative is Marcus’s own experience; two of the tires would have been damaged under the circumstances even if they were not RFT

Question 28

28 USC …… Removal and stuff

(9 relevant elements)

Answer 28

§1441 - Removal of civil actions

§1442 - Officers or agencies

§1443 - Civil rights cases

§1444 - Cases against the United States

§1445 - Non-removable actions

§1446 - Procedure for removal

§1447 - Procedure after removal generally

§1448 - Process after removal

§1453 - Removal of class actions

§§1449-1455 - other removal actions

Question 29

Purpose & Problem with strict pleading standards…

Answer 29

Purpose: prevent cost and expense of discovery if case is a nonstarter; avoid unfair pressure to settle

Problem: crucial information is often in the hands of the defendant and cannot be obtained absent discovery

Court is more liberal in accepting pleadings when π is pro se

Question 30

Hanna v. Plumer

(1 main question)

Answer 30

• ALWAYS apply FRCP!!!
• Rules Enabling Act: FRCP can’t create different substantive rights, they can only deal with civil procedure.
• Case is about state v federal rules of process.
• Question is whether the rule was important to the choice of forum at the outset.
• Again, FRCP cannot be used to circumvent the laws of a state. Here, ▲ is attempting to use the application of state rules to avoid liability.
• If a plaintiff serves a defendant properly under the federal rules, the plaintiff can proceed with a state-law claim that requires a different method of service for establishing liability.

Question 31

Breast Implant Litigation

Answer 31

Breast Implant Litigation

The MDL Panel rejected the suggested choices for judge by all parties and selected Chief Judge Sam Pointer, an experienced MDL judge and former member of the MDL Panel. Pointer apparently was not identified by any party.

Question 32

Misjoinder

Rule 21

(3 elements)

Answer 32

Misjoinder:

1. Court, on motion or on its own, may add or drop a party or sever claims against a party.
2. A party is misjoined when the requirements of permissive joinder are not satisfied.
3. Not grounds for dismissal.

Question 33

Appeal Standards of Review

(4 elements)

Answer 33

1. Pure questions of law – de novo
2. Question of fact by judge - affirm unless clearly erroneous (e.g., factual findings of a judge) – Rule 52(a)
3. Question of fact by jury - affirm unless no reasonable jury could have made that conclusion
4. Abuse of discretion (e.g., amendments to pleadings, most discovery issues) - affirm unless court abused its discretion

Question 34

Pleadings

Answer 34

1. Complaint
   
   • Plausability
   • Sanctions
2. Parties
   
   • Permissive Joinder
   • Mandatory Joinder
   • Impleader
   • Intervention
   • MDL
   • Class Actions
3. Remedies
   
   • Compensatory Damages
   • Punitive Damages
   • Injunctions
   • Seizure of Assets

Question 35

Interpleader

§1397

Answer 35

Interpleader: Any civil action of interpleader of this title may be brought in the judicial district in which one or more of the claimants reside.

Question 36

Long Arm Statute

(5 elements)

Answer 36

1. State long arm statute: First issue to examine when looking at personal jurisdiction
2. Many such statutes provide that jurisdiction goes to the limit of due process.
3. Some have narrower wording but have been interpreted to go to the limit of due process. (e.g., Woodring v. Hall)
4. Some are narrower than the limit of due process and provide long arm jurisdiction only in certain kinds of cases (e.g., breach of contract, commission of a tort)
5. If the lawsuit is not encompassed by the state long arm statute, that is the end of the inquiry (unless a federal statute provides for nationwide personal jurisdiction)

Question 37

Intervention

Rule 24

(2 main, 5 sub-elements)

Answer 37

Intervention

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
(b) Permissive Intervention.
(1) In General. On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) CQLF

(2) By a Government Officer or Agency.
(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

Question 38

In re Termination of Parental Rights

Answer 38

Facts

Jerome EM appeals termination of parental rights to his son Greg; argues that trial court should have applied claim or issue preclusion

Gail and Jerome are parents of Greg; never married; he contributed nothing to costs of pregnancy or birth; paid no child or other support

When Greg was 3, Jerome petitioned for adjudication that he was father; occurred in 1997; afterwards, Jerome still didn’t make payments, provided no emotional support, didn’t visit or communicate except one conversation with guardian ad litem

Since Greg was one, he has lived with Gail and Roger; they filed petition to terminate Jerome’s parental rights and Roger petitioned to adopt Greg; testimony showed past threats, violent conduct regarding his wife and children during his first marriage. Court found that Jerome had abandoned Greg and was an unfit father; court terminated parental rights

Holding

Jerome argued that prior paternity determination concluding he was father and ordering periods of placement with Jerome prevented termination

Specifically, he argued claim preclusion and issue preclusion

Here, petition to terminate Jerome’s parental rights was not an attack on the judgment that Jerome was Greg’s biological father; rather, it was a claim that, in Greg’s best interests, Jerome’s parental rights should be terminated; thus, claim preclusion did not bar the suit.

Issue preclusion applies only to actual litigation of the same issue; it is ultimately a discretionary call.

Only issue determined in first case was whether Jerome had legal right to parent him; court didn’t determine whether Jerome had abandoned Greg or failed to assume parental responsibility for him

Question 39

Iqbal

(2 part test)

Answer 39

• Twombly is applicable to all such actions regardless of subject matter.
• Two part test:
  
  1. The principle that a court must accept as true all allegations in a complaint does not apply to legal conclusions (e.g., negligence, conspiracy)
  2. Only a claim that states a “plausible” claim for relief will survive a motion to dismiss. The court must “draw on its judicial experience and common sense.”

Question 40

Phases of Discovery

(3 elements + subs)

Answer 40

Disclosure

• 90-120 Days.
• Concludes with discovery conference (Rule 16) and discovery order.
• No other discovery takes place during this time.

Formal discovery process.

• May last months to years.
• Use of all discovery devices.

Pretrial

• Disclosure of expert information describes in Rule 26(a)(2).
• Expert deposition may take place.
• Disclosure of trial witnesses and docs described in Rule 26(a)(3).
• Parties may seek admissions on key issues in Rule 36.

Question 41

Removal, Timing

(3 elements)

Answer 41

A. §1446 - Removal: 30 days after receipt of complaint

B. §1447 - Remand: 30 days after removal

C. Time Limit on Removal for diversity

1. One year
2. Time limit is not applicable if plaintiff is guilty of bad faith (purposefully delaying a key act, such as dismissing a non-diverse defendant, until after the one-year period) (28 USC §1446(c)(3)(B)) => International Paper example!
3. Contrast federal question: if a federal cause of action is added during the case, that can create federal question jurisdiction and justify removal even after more than a year.

Question 42

2 (of 5) Ways to get a federal question for SMJ purposes?

Answer 42

1) Federal law creates an action: Case is about violation of a federal law. (Article III “arising under” federal statutes, US Constitution, treaties, federal regulations)
2) State law where a federal question is arguably a major component - Bracken, Gunn Bracken v. Matgouranis (removal to fed court, wacky ass attempted murder, extortion case. ▲ thought π would assert absolute privilege so said refusal would be violation of free speech and removed to fed court.)

Question 43

Twombly

Answer 43

• (Souter writing for majority) For anit-trust cases conclusory statements of claims will no longer survive a motion to dismiss.
• Instead, a complaint must contain enough facts to raise a reasonable expectation that the discovery process will reveal relevant evidence to support the claim.

Question 44

Motion for Judgement on the Pleadings

Rule 12(c)

(2 elements)

Answer 44

Judgement on the Pleadings

After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

Does NOT involve evidence.

Question 45

Removal requirements for federal question

(6 elements)

Answer 45

1) Can emerge at any time.
2) No 1 year requirement.
3) No forum ▲ rule.
4) 30 days to remove.
5) 30 days to remand.
6) ▲ ‘s burden of showing federal jurisdiction.

Question 46

Settlement

Answer 46

• res judicata
• no collateral estoppel unless issue is settled

Question 47

Johnson v. City of Dallas

Answer 47

This case takes a very narrow approach to intervention. The businesses and homeowners’ associations had an economic interest in the challenge to the city ordinances. Yet, the court denied not only intervention as of right, but also permissive intervention.

With respect to intervention as of right, the court found that the interests were too abstract and were shared by too many businesses in the community. The court also found that the movants’ interests were adequately represented by counsel for the City of Dallas.

With respect to permissive intervention, the court reiterated that the movants’ interests were adequately represented. It further found that movants’ participation would needlessly delay the case, and that the economic arguments that the movants planned to make were not legally relevant.

The court, however, allowed movants to appear as amici for the sole purpose of submitting briefs.

An amicus is not a party, but rather only a “friend” of the court; an intervener becomes a party to the case. In Johnson, the movants were only allowed (as amici) to file briefs.

####

Question 48

Discovery

(8 elements)

Answer 48

1. Document Requests
2. Depositions
3. Interrogatories
4. Request to admit
5. Physical/Mental Exams
6. Privileges
7. Work Product
8. Sanctions

Question 49

Manley test for deciding transfer

(12 elements)

Answer 49

Pro se π given priority.

π choice given priority unless not in home state or not in a place where significant events that gave rise occurred.

TEST for deciding transfer:

1. π choice of forum;
2. Δ preference;
3. where the claim arose;
4. the convenience of the parties;
5. convenience of witnesses, but only to extent that witnesses may be unavailable in a fora;
6. the location of records and such that could not be produced in the alternative forum;
7. enforceability of the judgement;
8. practical considerations to make the trial easy, expeditious or inexpensive;
9. relative court congestion in competing courts;
10. the local interest in deciding local controversies at home;
11. public policies of the fora;
12. the familiarity of the trial judge with the applicable state law.

Question 50

Subject Matter Jursidiction Analysis

(4 elements)

Answer 50

1) Determine if removal was timely.
2) Look at well pleaded complaint. Does federal law create the cause of action?
3) If state law where federal law is a component of the claim or defense
a. Not sufficient if the federal question arises only as a defense or a response to a defense (e.g., Bracken)
b. Test for whether federal question is embedded in a state law claim (not just merely a defense part part of plaintiff’s case) involves a consideration (under Gunn) of whether the federal issue is:
i. necessarily raised
ii. actually disputed
iii. substantial (to the federal system as a whole)
iv. capable of resolution in federal court without disrupting the federal-state balance approved by Congress (looks at both federal and state court scenarios)
4) Analyze diversity jurisdiction. Has a claim been stated against a non-diverse ▲? (Fraudulent joinder)

Question 51

Rule Enabling Act

Answer 51

The Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs. pleadings and motions, and the practice and procedure of the district courts of the US in civil actions. Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury.

Question 52

Guedry v. Marino

(1 main takeaway)

Answer 52

• Joinder of parties under Federal Rule of Civil Procedure 20(a) does not require that every question of law and fact be common to every party.
• T/O
• Common question of fact
• Shows how liberal joinder can be

Allowed the joinder of seven plaintiffs alleging a variety of constitutional violations by the sheriff of St. Charles Parish, Louisiana. Although an important aspect of all of the claims (excluding those of Wilson) was harassment and termination based on support of the defendant’s opponent in the election, only some of the plaintiffs claimed race discrimination. And Wilson’s claims were not similar to those of the other plaintiffs, as the court itself acknowledged.

Question 53

Rule 35

Answer 53

Physical and Mental Examinations

Must be directly relevant to the case.

Question 54

Judicial Notice

Answer 54

Rule 201

Portland is in Oregon

Question 55

Gunn Test

(4 elements)

Answer 55

Federal jurisdiction over a state law claim will lie if the federal issue is (aka Federal Question TEST):

1) necessarily raised,
2) actually disputed,
3) substantial (important to the federal system as a whole) and,
4) capable of resolution in federal court without disruption of the federal-state balance

Question 56

Power of the Court

Answer 56

1. Over Parties
   
   • Personal Jurisdiction
   1. Specifc
   2. General
   3. Property
   4. Tag/Transient
2. Over Subject Matter
   
   • Diversiy
   • Federal Question

Question 57

Hickman v. Taylor

Answer 57

Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda, and personal recollections.

Question 58

Duty to Disclose and General Provisions for Discovery

Rule 26

(5 elements)

Answer 58

(a) Required Disclosures. Initial Disclosures required without court order. Evidence supporting the party’s claims.

• Info of everyone who is likely to have info relative to the case. Only witnesses that help your case.
• Docs in support.
• Damage calculation.
• Insurance agreement.

(b) (3) Work product not discoverable
(d) Duty to supplement - continuing if new things emerge
(g) Signatures - When you sign a discovery paper, you are certifying the accuracy > subject to sanctions via Rule 37.
(b) (1) Proportionality

• considering the importance of the issues at stake in the action,
• the amount in controversy,
• the parties’ relative access to relevant information,
• the parties’ resources,
• the importance of the discovery in resolving the issues,
• whether the burden or expense of the proposed discovery outweighs its likely benefit

Question 59

Choice of Law

Answer 59

1. Federal v. State
   
   • Erie
   • Guaranty Trust
   • Byrd
   • Hanna
   • Standard of Review
2. Which State?

Question 60

Rule 23(f)

(3 elements)

Class Actions - Appeals

Answer 60

• Allows interlocutory review of a decision granting or denying class certification;
• discretionary on the part of the appellate court;
• no requirement that the district court certify the issue for appellate review.

Question 61

Rule 37

Answer 61

Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(c) Catch a lie = get fees paid

Question 62

Privileges

(10 elements, 2 required, pick 3 more)

Answer 62

• Privileges can be waived (directly or through the act of disclosure)
• Some exceptions for public policy (e.g., attorney can report if client told her that he is getting ready to murder someone)
• Against self incrimination (5th Amendment)
• Attorney-client
• Doctor patient
• Priest-penitent
• Psychotherapist
• Husband wife
• Some places: conversations at Alcoholics Anonymous meetings
• Purpose is to assure free flow of information without deterrence; for instance, a lawyer needs to know the true facts to figure out what to do (or in case of 5th Amendment to protect a constitutional right to remain silent)
  *

Question 63

Impleader

Rule 14

(When ▲/π)

(Policies)

(5 general elements)

Answer 63

Impleader

(a) ▲ may implead
(1) By motion and with court’s leave if 15+ days after original answer, a ▲ (3Pπ) may… sue … a nonparty who is or may be liable to it for all or part of the claim against it.
(2) The 3P▲:

(A) must assert any defense against the 3Pπ claim under Rule 12;

(B) must assert any counterclaim Rule 13a, and may assert any counterclaim Rule 13(b) or any crossclaim Rule 13(g);

(C) 3P▲ Can mirror ▲ defense in case 1

(D) may also assert against the π any claim arising out of the T/O that is the subject matter of the plaintiff’s claim against the third-party plaintiff.

(3) π can assert ▲’s claim against 3P▲ as long as T/O
(4) Any party may move to strike the third-party claim, to sever it, or to try it separately.
(5) 3P▲ can implead
(b) π may implead against counterclaims

Rule 14: a defending party may sue “a nonparty who is or may be liable to it for all or part of the claim against it.” The new party is allegedly liable to the defendant if the defendant is found liable.

A sues B, B brings in C

Policies:

1. promotes efficiency
2. prevents inconsistent verdicts

Without impleader, in A v. B, B would have to defend without the presence of C, even though C would be liable to B if B were liable to A. B would have to sue C separately, creating inefficiency. Plus, if the first jury found A’s case to have merit, the second jury could rule against B and in favor of C on the ground that A’s case lacks merits, even though A’s case was previously found to have merit.

Claim must be contingent or derivative of the main claim:

• Indemnification: Insured sued in an auto accident case may implead the insurance company that has agreed to insure against such claims
• Contribution: joint and several liability for torts (plaintiff smoked two brands of cigarettes and sued one company after developing cancer)
• Subrogation: one person stands in the shoes of another for purposes of pursuing a claim – insured party sues his insurance company for injuries suffered in a car accident; insurance company can implead the driver whose alleged negligence caused the accident
• Liability of the defendant to the plaintiff need not be the same theory as the liability of the third-party defendant to the third-party plaintiff
• Impleader is permissive: Defendant might decide to sue nonparty in another forum in a separate case

Question 64

Summary Judgement

ΣJ

(5 elements)

Answer 64

1. Shortcut where there is no need for a trial because result is clear based on pleading and supporting evidence.
2. 56(a): Summary judgment if no genuine dispute as to any material fact and movant is entitled to judgment as a matter of law
3. Can have partial summary judgment (e.g., on one of several claims)
4. In theory can be filed at any time until 30 days after close of discovery, but usually the moving party will wait until some or all discovery has occurred
5. 56(d)(2): can deny or continue motion for summary judgment to permit discovery

Question 65

28 USC ….. District Courts; Venue

(6 Relevant Sections)

Answer 65

§1390 - Scope

§1391 - Venue generally

§1397 - Interpleader

§1404 - Change of venue

§1406 - Cure of waiver of defects

§1407 - Multi-district litigation (MDL)

Question 66

Interlocutory Decisions

28 USC §1292

Answer 66

Interlocutory Decisions

Basically an immediate appeal during trial that does not delay proceedings unless judge approves.

(a) (1) - courts of appeals have JD over orders about injunctions (granting/denying etc)
(b) - Certification - judge makes non-appealable order but believes allowing appeal would advance litigation (controlling question of law), he can certify appeal and court of appeals can decide to hear it immediately.

Question 67

Celotex v. Catrett

(3 elements)

Answer 67

1. Plaintiff: plaintiff claimed that her deceased husband was injured by exposure to Celotex’s asbestos. Celotex denied the allegations and sought summary judgment. Court held that where the nonmoving party will bear the burden of proof at trial, the moving party can discharge its initial burden by “showing – that is, pointing out to the district court – that there is an absence of evidence to support the nonmoving party’s case.”
2. So the defendant (Celotex) only needed to point to the absence of evidence because plaintiffs have burden of proof.
3. Situation is different if the moving party does bear the burden of proof at trial. Then it must affirmatively come forward with evidence.

Question 68

Grounds for Removal

(6 elements)

Answer 68

1) Diversity
2) Federal Question
3) ▲ is United States or agent or officer - §1442
4) Civil Rights violation - §1443
5) Admiralty
6) Patent - §1338(a)

Question 69

Class ASS

Rule 23

(General 3 elements)

(a) - 4 elements
(b) - 1 main element

Answer 69

Class Actions

C definable class

E judicial economy

N numberosity

C commonality

T typicallity

A adequacy

B 23(b) - class action may proceed if…

1) separate rulings risk
2) outcome applicable to all
3) common issues predominate

• Do NOT analyze PJ or SMJ
• Class action has to be superior to non class

Class Certification

1. Threshold Requirements
   a. Definable class (for notice, distribution of claims)
   i. Objective
   ii. (some courts) Ascertainability
   b. A representative who is a member of the class
   c. Claim that is not moot (Rocky)
2. Rule 23(a) requirements (must satisfy all four)
   a. Numerosity - lots of people (30+)
   b. Commonality - CQLF
   c. Typicality - Rep is typical of the class
   d. Adequacy of representation both
   i. Representative
   ii. Counsel
3. Rule 23(b) - if 23(a) met then class action can be maintained if:
   (1) separate actions would risk

(A) inconsistent rulings

(B) individual rulings would be dispositive to other members

(2) Party opposing’s actions apply to all members to that outcome would be applicable to all
(3) (catchall – usually for damages): common issues predominate over individual issues and a class action is superior to other ways of resolving the

Question 70

Kaplan v. Pomerantz

Answer 70

The falsehoods in the case involved

(i) plaintiff’s involvement in other lawsuits and
(ii) his wife’s ownership of other stocks.

The court acknowledged that the issues were of “marginal relevance” to the suit, but dismissed the representative and class counsel for lack of integrity.

Question 71

Agency Subsidiary Test (Daimler)

Answer 71

Agency Subsidiary Test Fail: does the sub perform tasks that if it failed to, the parent would have to? (majority rejects)

Agency Subsidiary Test: Is the sub so dominated by the parent that it is in effect, an alter-ego?

Question 72

Motion for Summary Judgement

ΣJ

Rule 56

(4 elements)

Answer 72

Summary Judgement (courts discretion)

• Weed out cases in which we do not need a trial.
• Court looks at evidence. Evidence supplied by parties in written form. Materials executed under oath.
  
  • affidavits
  • declarations
  • depositions
  • answers to interrogatories
  • Admissions
• If Δ fails to deny something in the pleadings
• Must show two things:
  
  • No genuine dispute on a material fact.
  • She is entitled to judgement as a matter of law.

Question 73

Jury Selection

Rule 47

Answer 73

Jury Selection

• Court may examine or permit parties to examine
• 3 peremptory challenges allowed per §1870
• during trial or deliberation, can excuse juror for good cause

Question 74

Depositions

Rule 30(a)

(1 element)

Rule 30(c)

(3 elements)

Rule 30(d)

(3 elements)

Answer 74

(a) no more than 10 depositions
(c) Exam/Cross, Record, Objections, Written Questions
(1) Examination and Cross-Examination - officer, oath, recorded
(2) Objections - noted, but continues. Only instruct not to answer for privilege, order, or motion.
(3) Written Questions
(d) Duration; Sanction; Motion to Terminate or Limit
(1) 1 day of 7 hours
(2) Sanction for fees and expenses for delay
(3) Motion to terminate or limit on bad faith examination + expenses

Question 75

Hildago v. Fagen

Answer 75

Challenge to peremptory strikes in a civil suit based on Batson (which involved criminal context)

Plaintiff was Hispanic; peremptories used to strike two Hispanic jurors

Plaintiff argued: racially motivated strikes

Lawyer said he preferred younger to older and men to women and admitted to having some concerns about the struck juror being Hispanic.

Lawyer who made strike need only articulate a legitimate nondiscriminatory reason for the strike; the finding of no intent to discriminate by the trial court is a question of fact, reversible only if clearly erroneous under Rule 52(a).

Question 76

Forum Defendant Rule

Answer 76

§1441(b)(2) - In diversity cases, forum ▲ cannot remove to federal court

i.e. ▲ cannot remove if he is a citizen of the state in which the suit was brought.

Question 77

Punitive Damages

(4 elements)

Answer 77

1. Unlike criminal sanctions, punitive damages are awarded to the π not the state, over and above any proved damages.
2. Ordinarily available ONLY when the Δ behavior is so outrageous or malicious that it fairly warrants a criminal-like sanction.
3. Sufficient evidence to justify an award of punitive damages? question of law for a court to decide
4. Amount of punitive damages? discretion of the jury.

Question 78

Depositions

(4 elements)

Answer 78

• 7 hour limit, witness gets to review transcript, no more than 10 depositions (a). Rule 30.
• Perpectual Testimony e.g. terminal illness video. Rule 27
• Before whom taken, authority to administer, oaths, etc. Rule 28
• Stipulates disclosure process. Rule 29.

Question 79

Stream of Commerce TESTS

(5 elements)

Answer 79

a. Asahi: O’Connor stream of commerce plus (not specifically rejected by majority)
b. Asahi: Brennan stream of commerce/foreseeability (not specifically rejected by a majority, but the McIntyre Kennedy plurality doesn’t support it and arguably Alito and Breyer don’t support it either)
c. McIntyre: Kennedy plurality’s test of whether there was an intent to submit to jurisdiction (or as Ginsburg puts it, whether defendant “consented” to jurisdiction
d. McIntyre: Alito/Breyer: apply specific contacts approach without a special test for stream of commerce
e. McIntyre: Ginsburg’s test of whether the defendant purposefully availed itself of the US market generally, thus making personal jurisdiction permissible in any state where injury occurred

Question 80

Interlocutory Review

(By statute: 2 elements)

(By rules: 3 elements)

Answer 80

Any order that is not a final judgement (Exception to final judgement rule): Grant for new trial etc.

By statute:

• §1292(a):
  
  • Allows interlocutory appeal of orders - injunction (grant, review, modify), etc.
• §1292(b): Can appeal if trial judge finds:
  
  • Issue is a controlling issue of law AND substantial ground for difference of opinion
  • AND court of appeals agrees to hear it.

Under FRCP:

• Rule 23(f):
  
  • Allows Court of Appeals discretion on an order granting/denying certification of CLASS ACTION.
• Rule 54(b):
  
  • Only comes up with MULTIPLE claims or MULTIPLE parties.
  • District Judge can expressly enter final judgement as to one or more of those parties or claims.
    
    • Judge must find there is no just reason for delay.
    • π sues Δ, Δ files counterclaim, Judge files ΣJ on counterclaim. If DC finds no reason for delay, counterclaim may be appealed.
• Collateral Order Rule.
  
  • Must show:
    
    • Important issue, separate from the merits.
    • Court order completely resolves that issue.
    • Issue is unreviewable if we have to wait for final judgement.
  • If these three are true, court of appeals has discretion to hear the appeal.

Question 81

The “internet”

(5 elements)

Answer 81

1. Internet is a source of confusion for personal jurisdiction; every case must be examined closely based on its facts
2. Passive web site alone is not enough (Cybersell, Bensusan)
3. Something more than passive web site (e.g., putting items on a server in the forum) may be enough (CompuServe)
4. Use of the internet for the transaction or matter at issue may demonstrate strong contacts for purposes of specific jurisdiction
5. Word of caution regarding general jurisdiction: under the old approach to general jurisdiction (continuing and systematic contacts plus due process) lots of internet activity in the state (e.g., lots of hits from the state) could satisfy general jurisdiction for a corporation; but after Daimler the test is whether a corporate defendant is “at home”

Question 82

TESTS for discovery

Answer 82

relevance and proportionality; information doesn’t have to be admissible to be discoverable

Question 83

Signature, Representations, Sanctions

Rule 11

(5 elements)

Answer 83

a. Applies to all pleadings, other papers signed by attorney (there are also separate sanctions provisions in the discovery rules)
b. Signature constitutes representations:
(1) no improper purpose;
(2) contentions are warranted by existing law or non-frivolous argument for extending law;
(3) factual contentions are warranted or likely will be after reasonable investigation;
(4) factual denials are warranted based on evidence or reasonably based on belief or lack of information
c. Sanction must be least severe sanction to achieve the purpose of Rule 11 (Seawright)

Question 84

What cases can be brought in federal court?

(2 elements)

Answer 84

1) Cases involving a federal question.
2) Diversity cases.

Question 85

VII Amendment

Answer 85

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

The Seventh Amendment continues a practice from English common law of distinguishing civil claims which must be tried before a jury (absent waiver by the parties) from claims and issues that may be heard by a judge alone. It only governs federal civil courts and has no application to civil courts set up by the stateswhen those courts are hearing only disputes of state law.

Where an issue applies to combined common law and equitable proceeding, the overlapping issue must be tried by a jury.

Question 86

Attorney Costs

(3 methods)

Answer 86

1. Percentage
   
   • Divorcing it from time spent
2. Lodestar
   
   • Reasonable hourly rate x number of hours x a possible multiplier
3. Contingency Fee - % of recovery if win, zero if lose

American Rule - each party pays legal fees.

• exceptions: by statute, or sanctions.

Fee Shifting - incentive for taking inj/decl cases where there is no money

Question 87

MDL

28 USC §1407

(8 elements)

Answer 87

Multi-District Litigation (MDL)

1. Pretrial purposes only
2. Includes both class actions and individual cases
3. Only applies to cases in federal court
4. Venue and personal jurisdiction rules don’t apply
5. Judge selected does not need to have any of the pending cases
6. Must be one or more CQF
7. MDL decision is made by special court – Judicial Multidistrict Litigation Panel (7 judges; none from same circuit) - Appoints ONE judge
8. Initiated by a party or MDL panel

Question 88

General Concepts of Subject Matter Jurisdiction

(4 elements)

Answer 88

1. Power of the court over the subject matter; federal courts are courts of limited jurisdiction (and most federal claims can be pursued in state court)
2. Unlike personal jurisdiction, subject matter jurisdiction cannot be waived
3. Defects in removal can be waived (if no motion to remand within 30 days) (28 USC §1447(c)) Waivable defects:
4. §1441(c)(2) - All defendants involved in the federal claim must join
5. §1441(b) - Forum defendant rule
6. Late removal (waited more than 30 days to remove)
7. Burden of proof for subject matter jurisdiction is on the party asserting federal court jurisdiction

Question 89

Real Party in Interest

Rule 17(a)

(3 elements)

Answer 89

REAL PARTY IN INTEREST

• Like standing; only the person who has the actual claim can sue
• Certain legal relationships qualify (e.g., executor, administrator, guardian, bailee)
• Person who owns the claim can ratify someone else’s ability to bring the claim (Pat Robertson)
• Naghui v. Intercontinental Hotels

Question 90

Rule 34

Answer 90

Document requests

Question 91

Permissive Joinder of Parties

Rule 20

(2 elements)

Answer 91

Permissive Joinder of Parties (v Mandatory, Rule 19)

(a) Who May Join or Be Joined.

π/▲:

• same T/O
• CQLF

Purposes of Permissive Joinder

1. Promote efficiency
2. Avoid multiple, duplicative, and sometimes inconsistent suits

Question 92

Statutorily non-removable claims

Answer 92

District court must sever and remand non-removable claim and keeps the rest (Brown v. K-MAC)

Question 93

Trial

Answer 93

1. Jury Trial
2. Jury Selection
3. Rule 50
4. Rule 59
5. ADR

Question 94

Malcolm v. Nat’l Gypsum Co

Answer 94

The Second Circuit held that the district court erred in consolidating for trial 48 plaintiffs claiming injuries from exposure to asbestos. The court explained that there were numerous differences among the plaintiffs (including different work sites, occupations, exposure periods, disease types, etc.), and expressed concern about the jury’s ability to sort out all of the evidence and keep track of each plaintiff’s case. The court sent a very strong message that efficiency could not be purchased at the expense of fairness to defendants. If adopted by other circuits, the Malcolm approach would clearly limit the ability of Rule 42 consolidation as an aggregation device. The dissent by Judge Walker suggests that reasonable minds can differ on the result.

Question 95

Scope of Venue

§1390

(3 elements)

Answer 95

Venue, Scope

(a) geographic specification
(b) exclusion of admiralty cases
(c) does not govern removal from state to federal, but does govern transfer between districts of cases removed

Question 96

DeWeerth v. Baldinger

Answer 96

Dispute over Monet painting, previously owned by plaintiff; discovered missing after WW I, subsequently purchased by Baldinger from third party defendant Wildenstein.

DeWeerth discovered that Baldinger possessed the painting in 1982; filed diversity action to recover it.

After bench trial, court held that DeWeerth had superior right to painting; reversed by 2d Cir because DeWeerth had failed to show reasonable diligence in pursuing the painting (1987).

Rule 60(b) motion was filed by DeWeerth in 1991 under (6), relying on NY state case (NY Ct App 1991) holding that in cases involving stolen art NY limitations law did not require showing of reasonable diligence as long as owner made demand on possessor within a reasonable time after learning of possessor’s identity; SOL began to run only after demand upon possessor and possessor’s refusal to comply.

Second Circuit held:

(6): deals with extraordinary circumstances, extreme hardship

District court concluded that the intervening decision was an extraordinary circumstance; NY Ct App expressly stated that 2d Cir’s prior ruling was wrong (unanimously); DeWeerth would have prevailed under NY Ct App rule; district court said that interest in finality was outweighed by need to prevent an extreme injustice. But in the Second Circuit’s view, the district court was wrong. Erie does not authorize reopening a case that has been closed for several years to get benefit of newly announced state court decision.

Question 97

Summary Judgement

ΣJ

Rule 56(a)

(2 elements)

Answer 97

Summary Judgement

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

• ▲ doesn’t have to put up evidence, only has to show π didn’t meet burden of proof by a preponderance of the facts.

Question 98

Certification under §1292(b)

Answer 98

1. District court must certify.
2. Must go to court of appeals within 10 days after certification.
3. Appellate courts must accept jurisdiction.

Requirements:

1. Controlling question of law; questions of fact don’t qualify
2. Substantial ground for disagreement: issue is complicated or courts are split. But even a question of first impression may not qualify if the answer is easy.
3. Resolution will materially advance litigation.

Focus is on efficiency: whether interlocutory review would ultimately result in a savings of time and expense for court and parties – e.g., avoid a trial or substantially curtail it.

Question 99

Venue in General

§1391(b)

Answer 99

A civil action may be brought in—

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

For transfers under §1404 and §1406 - must do venue and PJ test for transferee district.

Question 100

Counterclaims

Rule 13 (a) - Compulsory

Rule 13(b) - Permissive

Answer 100

COUNTERCLAIMS

1. (a) Compulsory: T/O that is the subject matter of the opposing party’s claim”; USE IT OR LOSE IT

2. (b) ​Permissive: unlimited scope; generally no preclusion problem.

Question 101

Liberty Mutual v. Wetzel

(3 elements)

Answer 101

Title VII suit arguing that employee insurance benefits and maternity leave regulations discriminated against women; on partial summary judgment court held policies violated Title VII; court did not order any of the relief requested – injunction, compensatory, exemplary damages, attorneys’ fees; district court and court of appeals said appeal was proper under Rule 54(b)

Court held:

• Complaint advanced only a single legal theory; Rule 54(b) only applies to multiple claims
• Not 1292(a)(1): no denial of an injunction sought by the loser
• Not 1292(b): no application within 10 days; court of appeals thought appeal was under 1291, not 1292(b), so no indication that appellate court approved 1292(b)

Question 102

Worldwide Volkswagen

Answer 102

• Unilateral activity is not enough for PJ
• foreseeability is not enough; must look at the conduct of the defendant

Question 103

Society of Separationists, Inc. v. Herman

Answer 103

Facts

First suit: Aug. 1987 suit by Murray, an atheist (daughter of famous atheist Madalyn O’Hare) and other plaintiffs in federal court alleging a pattern of having to refuse to take a “god” oath and then being excluded from jury duty. Part of suit was based on alleged violation of Establishment Clause. District court dismissed for failure to state a claim and 5th Circuit affirmed.

Second suit: Murray declined to take pre-voir dire oath for Texas jury duty because it referenced God. Murray was offered opportunity for affirmation in lieu of an oath but refused that as well. Claimed an affirmation was just as religious as an oath. Judge disagreed, and jailed her for contempt. She sued under 1983 claiming Free Exercise rights were violated. District court held earlier case was res judicata.

Fifth Circuit, after the first case, held in Ferguson that requiring a witness to take an oath or affirmation violated Free Exercise Clause.

Claim preclusion was not applicable: parties were not identical; Herman was not a defendant in the first suit and was not in privity with a defendant

Not issue preclusion: Need (1) issue at stake to be identical to one litigated; (2) issue was actually litigated in prior litigation; (3) determination of the issue in prior litigation was a critical and necessary part of judgment in earlier action. Test was not met here because this claim is Free Exercise, not Establishment Clause.

Also, issue preclusion would not apply because Ferguson is a change in the law.

Law of the case does not apply; different cases

Question 104

TEST: Choice of Law

(3 steps)

Answer 104

1. Hanna - Is there a federal rule or procedural statute that governs?
   a. YES - it governs (Erie)
   b. NO - is the issue substantive or procedural?
   i. . Procedural - FRCP
   ii. . Substantive - State statute and common law
2. If unclear: Guaranty - does it effect the outcome? Apply state law. But consider…
3. If still unclear: Byrd - is there a countervailing federal interest? Apply federal.

Question 105

Interrogatories are….

Answer 105

WORTHLESS.

Rule 33

Question 106

Removal requirements for diversity

(2 elements)

Answer 106

1) Parties must have complete diversity at the time of filing AND time of removal. Change in facts after removal will not defeat diversity.
2) §1446(c)(2)(A) - amount stated in the pleading used, or notice of removal may state if initial pleading was for non-monetary relief, or state law limits amount of relief.

Question 107

Joinder after Removal

§1447(e)

Answer 107

If after removal the π seeks to join additional ▲’s whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.

Question 108

Attorneys Fees

(5 elements)

Answer 108

1. American Rule: parties must normally pay their own attorneys, win or lose
2. Plaintiffs can often negotiate contingent fee contracts
3. Some statutes provide for fee shifting
4. Two methods for calculating fees:
   
   • Percentage of fund: some percentage of fund recovered without regard to number of hours invested
   • Lodestar: number of hours times reasonable hourly rate (and sometimes a multiplier for exceptional cases)
5. Some courts use percentage of fund but with lodestar cross check

Question 109

Howard v. Wal-Mart

Answer 109

Grounds for new trial:

Rule 50 - insufficiency of evidence

Rule 59 - Insufficiency of evidence, excessive/inadequate damages, jury misconduct, error by the court etc.

Question 110

General Rules of Pleading

Affirmative Defenses

Rule 8(c)

(2 elements)

Answer 110

(c) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;
• arbitration and award;
• assumption of risk;
• contributory negligence;
• duress;
• estoppel;
• failure of consideration;
• fraud;
• illegality;
• injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and
• waiver.

(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

Question 111

Default against ▲

(5 elements)

Answer 111

1. If after service of process a defendant fails to answer complaint, court can enter a default judgment
2. First step: Enter a default under Rule 55; only the court can enter a default judgment
3. Under Rule 55(b)(2), party must be given written notice at least 7 days prior to the hearing
4. Relief available under 55(c) for good cause and may be set aside in some circumstances
5. Default judgments are disfavored

Question 112

Bristol-Myers-Squibb

(3 elements)

Answer 112

JD exists if:

1. ▲ purposefully availed itself of privilege of conducting activities in forum state
2. Claims must arise out of or relate to the defendant’s forum conduct
3. Exercise of jurisdiction must be reasonable

For multiple ▲’s, must analyze separately.

Question 113

Death of Mutuality

Answer 113

Non-Mutual Collateral Estoppel

• Due process bars binding a party that was not a party in the earlier case.
• It is possible, after Parklane Hosiery, to bind a party (both offensively and defensively) in a non-mutual context.

Defensive:

• A v. B (officer of Vitamin Water) for alleged fraud by the company about the health benefits of Vitamin Water
• B wins; jury finds no fraud
• A v. C (another officer of Vitamin Water) for the same alleged fraud by the company
• C can argue that A should be barred from relitigating the issue. Issue is within the court’s discretion, looking at fairness (whether A had a full and fair bite at the apple).

Offensive:

• A v. B (officer of Vitamin Water) for alleged fraud by the company
• B loses (there was indeed fraud)
• C v. B (officer of Vitamin Water) for alleged fraud by the company
• C can argue that that B is collaterally estopped from arguing that there was no fraud. Issue is within the court’s discretion, looking at fairness (whether B had a full and fair bite at the apple).

Not Allowed:

Example:

• A v. B (officer of Vitamin Water) for alleged fraud by the company
• A loses (there is no fraud)
• C v. B (officer of Vitamin Water) for alleged misrepresentation by the company
• B can’t assert A’s loss against C because C wasn’t a party to the earlier case
• Here, C did not have any bite at the apple.

Example:

• A v. B (officer of Vitamin Water) for alleged fraud by the company
• A wins (there is fraud)
• A v. C (another officer of Vitamin Water) for alleged fraud by the company
• A can’t assert B’s loss against C because C didn’t have a bite at the apple

Question 114

Black v. Rhone Poulenc

Answer 114

Black focuses on the requirement of vigorous representation where class representatives were unprepared and did not understand their roles or the allegations in the case. Instead of dismissing the representatives, the court put the burden on class counsel to get them up to speed.

• set up sanctions if counsel didn’t fix

Question 115

Tiesler v. Martin Paint Stores

Answer 115

• Tiesler* is a straightforward application of Rule 14 (impleader)
• Joint and several liability is sufficient for impleader.

A minor plaintiff who was injured by denatured alcohol sued the paint store (for failure to comply with federal labeling and packaging requirements), and the paint store claimed that, if it were held liable, it would be entitled to contribution from the other youth (the third party defendant) whose negligence (according to the paint store) allegedly caused the injuries. As this case shows, while a joint tortfeasor context does not establish a basis for Rule 19 dismissal, it does justify an impleader action at the option of the defendant.

Question 116

Ex parte

Answer 116

• motions for orders that can be granted without waiting for a response from the other side
• Generally, these are orders that are only in place until further hearings can be held, such as a temporary restraining order.
• Typically, a court will be hesitant to make an ex parte motion. This is because the Fifth Amendment and the Fourteenth Amendment guarantee a right to due process, and ex parte motions–due to their exclusion of one party–risk violating the excluded party’s right to due process.

Question 117

Change of Venue

§1404

Answer 117

TRANSFER OR KEEP

Change of venue when venue is proper:

(a) for convenience and in the interest of justice, transfer to any district it could have been brought or that all parties consent to

• If all parties consent then PJ and venue concerns are waived
• A transfer request based on a FORUM SELECTION CLAUSE = no need for §1391 or PJ (PJ is fulfilled by consent to FSC)

Question 118

General Jurisdiction

(6 elements)

Answer 118

1. For corporations: no longer “continuous and systematic” contacts plus due process; test is now whether the corporation is “at home” – which generally means place of incorporation and principal place of business
   a. Daimler FN 19: It is arguably possible, to be at home elsewhere (for instance, if most of sales take place in one state)
   i. comparative analysis; BSNF (not at home in MT: BNSF has only about 6% of its total track mileage in MT, employs less than 5% of its total workforce there, and generates less than 10% of its total revenue in the State)
   b. The “at home” test does not require a separate due process analysis
   c. An open issue is whether the presence of an agent for service of process can substitute for being “at home”
   d. For individuals, general jurisdiction can be established by domicile, appearance, or tag jurisdiction
   e. Waiver applies (e.g., VW corporate didn’t contest personal jurisdiction in World-Wide Volkswagen)

Question 119

Sopha v. Owens-Corning Fiberglas Corp.

Answer 119

Facts

Robert Sopha was exposed to insulation with asbestos while working as an insulator from 1951-1995

Prior to 1987 diagnosed with pleural thickening (non malignant condition) involving lining inside chest cavity

March 1987 he and wife filed complaint in state court Milwaukee County for damages.

He died in Nov. 1997, so case was amended to include a wrongful death claim. Defendant moved to dismiss based on 3 year SOL; plaintiffs moved to dismiss and action was voluntarily dismissed “on the merits with prejudice.”

December 1996 – diagnosed with malignant condition of the pleural lining caused by asbestos. Plaintiffs sued in March 1997; Robert Sopha died Nov. 1997, so the suit was amended to include wrongful death

Defendants moved to dismiss – SOL and barred by claim preclusion

Trial court ruled that SOL barred 1997 action but that claim preclusion didn’t apply. State court of appeal certified case to Wisconsin Sup Ct.

Holding

First issue: When did claim accrue (SOL is 3 years)

Def argues for “single injury rule”– all injuries caused by a single transaction by tortfeasor are part of a single action; later injury doesn’t restart SOL

Plaintiffs rely on “discovery rule” – SOL starts on date injury is discovered or with reasonable diligence should have been discovered, whichever occurred first. Defendants say discovery rule doesn’t apply because plaintiffs knew earlier about injuries caused by asbestos

Another Wisconsin principle: Damages are recoverable for reasonably certain injurious consequences, not for speculative damages

Under argument: claim for mesothelioma was premature in 1980s but now is barred – leads to Catch 22

Single cause of action rule – deters stale claims, allows defendants to gain certainty

Discovery rule provides for fairness – where no opportunity to litigate a claim

If court held that malignancy suit was barred, would be incentive to bring premature lawsuits.

Here claim preclusion should not apply

Those who wait would lose claim for nonmalignant injuries; those who sue immediately would not be permitted to recover for later malignancy

Asbestos: long latency periods

Asbestos cases are different from other types of cases because of long latency periods and the progression of the disease

Can’t rely on private voluntary arrangements to toll SOL or avoid claim preclusion

Issue Preclusion

Issue preclusion can only occur when the claim containing the subject issue was not barred by claim preclusion; only applies to a particular issue; and it does not bar litigation of a matter that was not but could have been litigated

Question 120

Removal

§1441

(4 Elements)

Answer 120

Removal of Civil Actions

• ▲ waives venue challenge.
• Not an option for π because they should have brought it where they wanted it.
  (a) Generally
  1) Removal to federal district where state court lies, at ▲’s option.
  2) Fed court must have original JD (diversity/fed ?)
  (b) Removal based on diversity
  (2) Forum Defendant Rule - not removable if ▲ resides in the forum state.
  (c) Federal claim + State claim = sever and remand state claim, hear federal claim in DC.
  (d) Foreign state ▲ can remove to embracing district

Question 121

Diversity Aggregation for > $75,000

(3 elements)

Answer 121

Multiple claim against 1 ▲: YES

Multiple ▲’s with same π claim: NO

Multiple π’s suing 1 ▲ with claims under $75k: NO

Question 122

Personal Jurisdiction

Terrirotiality

(5 elements)

Answer 122

1. Served in state (transient/tag)
2. Appear in court (waiver)
3. Domiciled in state
4. Own property in state

• in rem: whole world
• quasi in rem 1: between parties
• quasi in rem 2 for in personam if attached before trial

Question 123

Joinder of Claims

Rule 18

Answer 123

Joinder of Claims

(a) A party can join as many claims as he/she has against the opposing party

• if T/O - use it or lose it - Pavon
• if not T/O - your choice

Question 124

Parklane Hosiery v. Shore

Answer 124

Shore brought shareholder class action against company in federal court; false and misleading proxy statement in connection with a merger; sought damages, rescission of merger, costs

Before trial SEC filed suit against same defendants, alleging proxy statement was materially false, misleading; after 4 day trial in SEC case, district court found proxy statement false and materially misleading; court of appeals affirmed

Shore then moved for partial summary judgment against Parklane Hosiery asserting that Parklane Hosiery was collaterally estopped from litigating the issues decided in the SEC suit; district court denied motion, saying it would violate Parklane Hosiery’s 7th Am rights. 2d Cir reversed

Holding:

Mutuality is no longer an invariable requirement for collateral estoppel

Blonder-Tongue: defensive use of collateral estoppel – plaintiff can’t assert a claim that it had previously litigated and lost against another defendant

Here: offensive use of collateral estoppel: plaintiff seeking to prevent a defendant from relitigating the issues which the defendant previously litigated and lost against another plaintiff

2 concepts aren’t the same

Defensive collateral estoppel gives plaintiff a strong incentive to join all potential defendants in first suit if possible. (Once a plaintiff sues one defendant, any issue litigated and decided adversely to plaintiff will be available to other defendants for issue preclusion in subsequent actions. So plaintiff might as well sue all defendants at once.)

Offensive use of collateral estopped has the opposite effect; plaintiff can rely on a previous judgment won by another plaintiff against a defendant but will not be bound by the judgment if defendant wins the earlier case; thus plaintiff has an incentive to adopt a wait and see attitude. If the first suit goes well, plaintiff benefits; if it doesn’t, plaintiff can still sue.

So use of offensive collateral estoppel will increase the total amount of litigation

Also, offensive use can be unfair to defendant; if first action is a suit for small amount of money, defendant may not have a strong incentive to litigate it vigorously; also unfair if the judgment is inconsistent with a prior judgment

Preferable approach is to give trial courts broad discretion to determine when offensive collateral estoppel should be applied; judge should not allow it where it would be unfair (e.g., where plaintiff could easily have joined in the earlier action or application would be unfair). But general rule is that trial courts shouldn’t allow offensive collateral estoppel.

Here:

Wait and see wouldn’t apply because private party could not join SEC action

No unfairness; company had strong incentive to litigate the serious case brought by the SEC

Also, judgment in SEC case was not inconsistent with any prior judgment

And there were no procedural opportunities available to the defendant in the second action that would lead to different result

Question 125

Walden v. Fiore

Answer 125

Location of impact (express aiming) is no longer enough outside of libel/defamation context; must look at overall facts

Question 126

Diversity of citizenship

4 (elements)

Answer 126

1. citizens of different states
2. citizens of a state and citizens or subjects of a foreign state
3. citizens of different states and in which citizens or subjects of a foreign state are additional parties
4. a foreign state as plaintiff and citizens of a state or different states

Question 127

Summary Judgement

ΣJ

Rule 56(a)

Answer 127

Summary Judgement

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Question 128

Mathews v. Eldridge TEST

Answer 128

Mathews v. Eldridge TEST -

○ What process is due when the government itself seeks to effect a deprivation on its own initiative:

1) the private interest that will be affected by the official action;
2) the risk of an erroneous deprivation of such interest through the procedures used and the probably value, if any, or additional or substitute safeguards;
3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Question 129

Rule 19

Test For Mandatory (Required) Joinder of Parties

(3 elements)

Answer 129

1. Can the court accord complete relief without the party? 19(a)(1)

• YES - joinder not mandatory >> Done
• NO - Party is necessary >> Step 2

2. Is joinder feasible? (PJ, SMJ, Venue etc.) 19(b)

• YES - party must be joined >> Done
• NO - indispensable test >> Step 3

3. Is the party indispensable?

• YES - case must be dismissed >> Done
• NO - Action may continue at court’s discretion based on:

(i) extent to which judgment in person’s absence would prejudice that person or existing parties;
(ii) extent to which prejudice can be reduced;
(iii) whether a judgment in the person’s absence would be adequate; and
(iv) whether plaintiff would have an adequate remedy if the action were dismissed.

Question 130

Motion to Dismiss for…

12(b)(3)

Answer 130

Motion to dismiss for (3) improper venue,

or transfer under §1406

Coltrane - transfer preferred because π is proceeding pro se. Awful prison case where π son died in custody in LA. She sued in DC.

Question 131

Statutory Interpleader

28 USC §1335

(4 elements)

Answer 131

(Statutory Interpleader):

• enables a party with money or property of value of $500 or more to invoke interpleader when
• two or more adverse claimants,
• of diverse citizenship,
• are claiming or may claim to be entitled to such property and the
• π has deposited such money or property with the court.

Tradeoff: relaxed diversity v. deposit stake with court.

Question 132

Default Judgement

Rule 55

Answer 132

Default Judgement - ▲ fails to plead or otherwise defend

1. For a certain amount = clerk enters
2. In all other cases = court determines and enters

Question 133

3 Steps of Celotex

Answer 133

STEP ONE

Initial Burden of Production: Moving party must make a prima facie showing that it is entitled to summary judgment. How that showing is made depends upon which party has the burden of persuasion at trial. (In a suit by A against B for assault, A has the burden of persuasion at trial.)

1. If the moving party bears the burden of persuasion at trial, that party [plaintiff] must support its motion with credible evidence (including but not limited to depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers) that would be sufficient for a directed verdict in its favor at trial if not disputed.
2. If the nonmoving party has the burden of persuasion at trial, the moving party [defendant] may satisfy its burden of production in either of two ways:

(1) submit affirmative evidence that negates an essential element of the nonmoving party’s claim, or
(2) demonstrate that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim. [Celotex is an example of #2]. The moving party cannot just assert in a conclusory way that the nonmoving party has no evidence. Rather, it must affirmatively show the absence of record evidence. This can be done, for instance, by reviewing the existing evidence in the record or deposing the nonmoving party’s witnesses.

C. If the moving party fails to satisfy its initial burden of production, summary judgment must be denied.

STEP TWO

Moving Party Satisfies Its Initial Burden of Production: Burden of production then shifts to the nonmoving party. The nonmoving party must either produce evidence that establishes a genuine issue of material fact for trial or submit an affidavit seeking additional time for discovery (in order to secure the requisite evidence).

STEP THREE (and beyond)

If the nonmoving party provides evidence showing a genuine issue of material fact, the moving party must respond by showing that the evidence relied on by the nonmoving party is inadequate. If the moving party fails to provide an adequate response, summary judgment must be denied.

If the moving party shows that the nonmoving party’s evidence is inadequate, then the nonmoving party must either rehabilitate its evidence or produce additional evidence showing a genuine issue of material fact (or submit an affidavit seeking more time for discovery).

BOTTOM LINE ASSESSMENT: The court looks at all the evidence submitted by both sides to determine whether the moving party has shown that there is no genuine issue of material fact for trial.

Question 134

Specific Jurisdiction

(6 elements)

Answer 134

1. Unilateral activity: foreseeability is not enough; must look at the conduct of the defendant (World-Wide Volkswagon)
2. Intentional torts/express aiming is no longer enough outside of libel/defamation context; must look at overall facts (Walden)
3. Stream of commerce possible tests
4. Waiver applies
5. For multiple defendants, must analyze separately (Bristol-Myers)
6. Sotomayor synthesis in Bristol Myers dissent (also in Cybersell):

Question 135

Crossclaims

Rule 13(g)

Answer 135

CROSS CLAIMS

Claim by a defendant against a co-defendant. Must already be a party. Rule 13(g).

Test is “same transaction or occurrence that is the subject of the original action or counterclaim or claim relates to property that is subject matter of original action”

Question 136

Temple v. Synthes Corp.

(1 main takeaway)

Answer 136

• It is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit because joint tortfeasors are merely permissive parties.

Temple had surgery in which a plate and screw device was implanted in his lower spineManufactured by Synthes; LaRocca performed surgery

Screws broke off inside Temple’s back

Sued Synthes in federal court; sued LaRocca and hospital in state court

Synthes moved to dismiss federal suit for failure to join necessary party

Supreme Court held that Synthes was not even a necessary party, let alone an indispensable party. A tortfeasor with joint and several liability is merely a permissive party.

Question 137

Removal

§1441

1 big point!

Answer 137

Removal by ▲ from state to federal court in the district containing the state court. Venue is automatically proper.

No need for §1391(b) (venue requirements)

▲ is waiving objection to venue by removing.

Question 138

Mullinex Chart

Answer 138

Assault: A v B

Step 1: What do you have to produce with motion for ΣJ?

• A moves: Evidence (π rarely wins ΣJ)
• B moves: Evidence - point to insufficiency of evidence in the record

Step 2: What do you produce in response?

• B opposes: Evidence - genuine issue of material fact. Rule 56(a)(2)
• A opposes: Evidence - Rule 56(d)(2)

Step 3: Is there an issue of material fact for trial?

Question 139

Erie Railroad Co. v. Tompkins

(1 main element)

Answer 139

• A federal court sitting in diversity must apply state substantive law, whether statutory or common law.
• The law should be the same, though the judge may change.
• Must apply state common law
• Substance = state statute and common law
• Procedure = FRCP

Question 140

6247 Atlas Corp v. Marine Ins. Co

Answer 140

This case involved an interpleader relating to insurance coverage. Atlas, the plaintiff, was a dealer who claimed that more than $6 million in jewelry and other valuables had been stolen. Various “memo holders” sought to recover for valuables consigned to Atlas. As a result, Atlas sued its insurance carriers based on its $3.1 million in coverage. The court held that the insurance defendants were entitled to interplead the various memo holders under Rule 22.

First, the insurance carriers legitimately feared multiple litigation over the $3.1 million fund. Second, absent interpleader, unnecessary duplication and waste would occur. Finally, Atlas was adverse to the memo holders, and defendants were adverse to all of the other parties because they were denying liability to Atlas and the memo holders

Question 141

Cross-claims

(2 elements)

Answer 141

Rule 13(g)

• always permissive
• π v ▲1, ▲2
  
  • ▲1 sues ▲24
• T/O

Question 142

Injunctions

Answer 142

1. TRO
   
   • Can be issued ex parte.
   • Time limit - 14 days usually, extendable another 14 days
   • Doehr declared unconstitutional
2. Preliminary Injunction
   
   • throughout trial
   • Supreme Court gold standard
   • briefed and litigated before issued
3. Permanent Injunction
   
   • ruling at verdict
   • Structural injunction - example - prison that is unsafe or unfair, court will issue perm inj requiring the prison fix it.
4. Declaratory Judgement
   
   • A gentler form of relief than an injunction; tells the parties what their respective rights are

Question 143

Interim Injunctive Relief TEST

(3 elements)

Answer 143

1. Likelihood of success on merits.
2. No adequate remedy at law.
3. Irreparable harm - if granted/not granted.

Question 144

Dismissal of Actions

Rule 41

(2 elements)

Answer 144

(a) Voluntary dismissal
* by π, w/o prejudice unless previously voluntarily dismissed
(b) Involuntary dismissal
* by ▲, with prejudice (unless PJ, venue, 12(b)(6))

Question 145

Can Subject Matter Jurisdiction be waived?

Answer 145

Unlike personal jurisdiction, subject matter jurisdiction cannot be waived. However defects in removal can be waived.

Question 146

Salve Regina College v. Russell

Answer 146

• A federal court of appeals should not defer to a district court’s interpretation of state law.

1. Federal court must make an educated guess if there is no state supreme court opinion on point
2. Even an intermediate state appellate decision is not necessarily controlling
3. A federal appellate court gives no deference to a federal district court in ascertaining state law [Salve Regina College]

Question 147

Property and Tag Jurisdiction

(3 elements)

Answer 147

1. Property for in rem, quasi in rem 1: Will always be sufficient contacts, and it is hard to imagine due process issues
2. Property for Quasi in Rem 2: existence of property, even if attached prior to judgment, is not automatically enough
   a. Must do minimum contacts/due process analysis
   b. Property can, however, be an important contact depending on the case
   c. No need for a minimum contacts analysis if the action is merely to seize property to enforce a valid judgment
3. Tag Jurisdiction
   a. Burnham: Supreme Court is divided
   i. Scalia plurality: tag jurisdiction always enough without due process analysis (although perhaps subject to a voluntariness test)
   ii. White: There may be an egregious situation where tag jurisdiction not enough but in virtually all cases it is enough
   iii. Brennan plurality: must apply due process but that test is easily satisfied (e.g., three days in the venue getting the benefits of government services) (note: for Brennan, tag is substitute for continuous and systematic for general jurisdiction but would also require reasonableness)
   b. Tag jurisdiction may not be enough, even for the Scalia plurality, if the person served is in the residence involuntarily. For Scalia, this safety valve would exist, if at all, only in the most egregious case (e.g., plaintiff kidnaps the defendant, moves the defendant to the forum state, and effects service)

Question 148

Procedure for Removal

§1446(a)

Answer 148

the defendant must file a short and plain statement of the grounds for removal, which shall be signed

30 days remove

30 days remand

Must remove within a year of commencement, unless joinder of claims or parties would open up diversity.

Consent of all joined parties required.

Question 149

Santelli v. Electro-Motive

Answer 149

A party cannot inject his or her psychological treatment, conditions, or symptoms into a case and expect to be able to prevent discovery of information relevant to those issues.

Question 150

General Rules for Relief

Defenses: Admissions and Denials

Rule 8(b)

(6 elements)

Answer 150

(b) Defenses; Admissions and Denials.
(1) Response to a pleading:

(A) short and plain statement of defenses to each claim

(B) admit or deny

(2) Denials must respond to the substance of the allegation.
(3) Deny all (including JD) = general denial
(4) Denying Part of an Allegation = admit truth and deny the rest
(5) Lacking Knowledge or Information = denial
(6) Effect of Failing to Deny = admitted

Question 151

Cure or Waiver of Defects

§1406

Answer 151

TRANSFER OR DISMISS

Cure or waiver of defects when venue is improper:

• transfer if in the interest of justice (Circus Circus)
• PJ, SMJ, venue test for transferee district

Question 152

Removal of class actions

Answer 152

§1453(b) - A class action may be removed to a district court of the United States in accordance with section 1446 (except that the 1-year limitation under section 1446(c)(1) shall not apply), without regard to whether any defendant is a citizen of the State in which the action is brought, except that such action may be removed by any defendant without the consent of all defendants.

Question 153

In re: NFL Concussion Litigation

Answer 153

Class Settlements

For purposes of our class, the key Girsh factors focus on

(1) reasonableness of the settlement amount given the risks and likely duration of litigation;
(2) whether the parties had adequate opportunity to investigate the claims.

The settlement provided uncapped monetary compensation for retired NFL players with certain cognitive conditions (diagnosed currently or over the next several decades), a baseline assessment program for all class members, and a fund to educate football players on how to prevent injury. After finding that class certification was proper, the Third Circuit agreed with the district court that the settlement was fair, reasonable, and adequate.

Initially, the court emphasized that there is a presumption of fairness in settlements where, like here, certain elements are met: arms-length negotiations, sufficient discovery, settlement proponents with experience in similar litigation, and objections from only a small fraction of the class.

The court then provided a detailed fairness analysis using the nine Girsh factors. The analysis largely tracked the district court’s analysis in previously approving the settlement. Both courts also focused on whether the settlement’s treatment of CTE was fair. The court found that it was reasonable to limit the death with CTE condition to only a small subset of class members who were diagnosed with CTE prior to the district court’s final settlement approval. As to the other class members, the court emphasized that because the cognitive symptoms of CTE correlated with other compensable conditions, those with CTE would likely be compensated under a different qualifying diagnosis.

Question 154

Discovery Devices

(7 elements)

Answer 154

1. Mandatory Disclosures (Rule 26(a)(1))
2. Depositions (Rule 30(c-d))
3. Interrogatories to parties (Rule 33)
4. Documents, tangible things (Rule 34)
5. Physical and mental exams (Rule 35)
6. Requests for admission (Rule 36)
7. Electronic Discovery (Amended Rules 3, 16, 26, 33, 34, 45)

Question 155

Required Disclosures

(4 elements)

Answer 155

Rule 26(a)

Without awaiting request, provide:

• names, addresses, and phones.
• Docs
• Computation of damages
• Insurance agreements

Question 156

Exceptions to the Final Judgement Rule

Answer 156

1. Injunctions §1292(a)(1)
2. Certification §1292(b)
3. Rule 54(b) - Judgement on multiple claims/parties
4. Mandamus
5. Collateral Order Doctrine - judge orders someone not wear religious item in court etc.
6. Rule 23(f) - Appeal from grant/denial of class cert.
   
   • doesn’t require approval by judge only acceptance by COA

Question 157

Response to pleadings

Rule 36

Answer 157

Admit or deny

Question 158

Pre-Trial Resolution

Answer 158

1. Default
2. Involuntary Dismissal
3. Voluntary Dismissal
4. Summary Judgement

Question 159

Interim Injuctive Relief

Answer 159

General Standards:

• Likelihood of success on merits.
• No adequate remedy at law.
• Irreparable harm - if granted/not granted.

Two Kinds:

1. Temporary Restraining Order (TRO): an injunction pending the determination of a preliminary injunction. 65(a)
2. Preliminary Injunction: an injunction pending the resolution of the merits of the litigation. 65(b)

Question 160

Convenience of the Court

Answer 160

1. Venue
   
   • In Removed Cases
   • In Cases filed in Federal Court
2. Transfer
   
   • §1404
   • §1406

Question 161

Forum Selection Clauses (FSC)

(2 elements)

Answer 161

1. Can serve as a form of contractual agreement to personal jurisdiction
2. Supreme Court allowed for forum selection clauses to be enforced even in the consumer context as long as such clauses are not unreasonable

(Carnival Cruise Lines) (did not subject consumer to an inexperienced, partisan, or remote alien forum and was not designed to discourage claimants from pursuing legitimate claims)

Question 162

Why might a court become involved in the discovery process?

(3 elements)

Answer 162

• compel
• sanctions
• protective order
• A party may seek to compel answers or responses to devices. Rule 37(a).
• A party may seek sanctions for allegedly improper responses or conduct. Rule 26(g), 30(d)(2), 37(b).
• A party who wants to preclude, limit, change, or otherwise impose restrictions on discovery may see a protective order. Rule 26(c).

Question 163

Involuntary Dismissal Against π

(2 elements)

Answer 163

1. Rule 41(b): Plaintiff fails to prosecute
2. Within court’s discretion; can operate as an adjudication on the merits with res judicata effect.

Question 164

Issue Preclusion

(Collateral Estoppel)

(3 elements)

Answer 164

N - necessary part of judgement in prior case

I - identical to issue in prior case

L - actually litigated in prior case

Need

(1) issue at stake to be identical to one litigated;
(2) issue was actually litigated in prior litigation;
(3) determination of the issue in prior litigation was a critical and necessary part of judgment in earlier action.

Merger - claim preclusion if claimant won case 1

Bar - claim preclusion if claimant lost case 1

Question 165

Failure to State a Claim

Rule 12(b)(6)

(6 elements)

Answer 165

Failure to state a claim - does this case belong in the litigation stream at all?

• Does not look at evidence.
• Looks at the face of the complaint. Test: TWIQBAL
• Ignores conclusions of law and looks only at allegations of fact.
• The facts alleged must support a plausible claim (not just possible).
• To determine plausibility, judge uses own experience and common sense.
• Can dismiss with/out prejudice/leave to amend.

Question 166

Well-pleaded complaint rule

Answer 166

π’s initial complaint must contain the references to the federal question and the federal issue evoked.

The federal question and issue cannot arise in an anticipated defense, it must be presented from the initial complaint.

Question 167

Motion for New Trial

Rule 59

(1 main, 3 timing)

Answer 167

New Trial; Altering or Amending a Judgment

• result is against reason (rule 50) v “something went wrong here” (rule 59)
• relief because of a mistake = no claim preclusion
• Many criteria:
  
  • insufficient evidence
  • newly discovered evidence
  • question of damages +/-
  • inadmissable evidence
  • jury misconduct

(a) In General.
(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.

28 days after the entry of judgement:

(b) Motion for a New Trial
(d) New Trial on the Court’s Initiative
(e) Motion to Alter or Amend a Judgment

Question 168

Preclusion

Answer 168

1. Stare Decisis
2. Law of the Case
3. Claim Preclusion
4. Issue Preclusion

Question 169

Consolidation

Rule 42

(3 elements)

Answer 169

Consolidation; Separate Trials

• First consider venue and transfer motions, then removal, then consolidation
  
  • If venue/JD problems = MDL
• cases remain separate but same trial
• weak because same district required
• Malcom v National Gypsum (too many parties to try together - abuse of discretion)

(a) Consolidation. If actions before the same district involve a CQLF the court may:
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay (e.g. joint discovery)
(b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.

Test: common question of law or fact

Question 170

How to Present Defenses

Rule 12(b)

(5 main elements)

Answer 170

How to Present Defenses. 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:

(1) lack of subject-matter jurisdiction;
(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 (judgement as a matter of law); and
(7) failure to join a party under Rule 19 (Necessary and permissive joinder of parties)

Question 171

Herrera v. Richter

Answer 171

Facts

Herrera stuck by an automobile owned by Reicher and driven by Reicher’s son (Paul, Jr). Reicher was insured by American Family.

Herrera brought tort action against Reicher and son. Jury awarded $8000 on the claim against the son but denied recovery against the father.

Later Herrera sued Reicher and American Family (but sought no relief sought against Reicher). Herrera sought recovery of the $8000, then final, awarded against the son. Trial court granted summary judgment to defendants based solely on issue preclusion.

Holding

Issue must have been unambiguously decided in the first suit. Plaintiff argues that the issue of whether the son had permission (express or implied) to drive the father’s car was not resolved in the tort action and thus the trial court erred in invoking collateral estoppel.

Defendants argued that the jury determined that the father did not know or have reason to know that the son used the car, and thus the father didn’t give permission to the son; thus, the son was not insured under the policy.

Defendants relied on instruction 7 and on the fact that the verdict was in favor of Reicher. Plaintiff’s theory was negligent entrustment. Under that instruction, jury had to believe 7 specific propositions before returning a verdict for plaintiff against Reicher. Verdict was general verdict that didn’t show which propositions the jury failed to believe.

Thus, instruction 7 placed a number of things on plaintiff to prove.

Defendants argue that the only explanation for the verdict is that the jury concluded that the son was operating the car without permission.

The jury could have believed all of the propositions in the instruction except that part of #4 that required a belief that the father was negligent in making the car available to the son. The jury could have found that the father made the car available but wasn’t negligent in so doing.

Irrelevant that the instruction may have been an incorrect instruction of the law. What the jury did is what matters for collateral estoppel.

Irrelevant that the ambiguity that exists is a result of flaws in the instruction.

Possible to explain general verdict as jury finding that the defendant did give permission but that he was not negligent or that no permission was given

Special verdict would have solved the problem; would have shown unambiguously how jury resolved each issue

Can’t call jurors to testify about rationale of their decision

Question 172

Sanctions

(3 elements)

Answer 172

Rule 37

• Motion to compel if failure to respond to discovery or incomplete
• Sanctions for failure to comply with court order, including prohibiting testimony, striking pleadings, dismissing the action
• Sanctions for failure to admit or failure to disclose (initial disclosures) or supplement, including attorneys’ fees, other sanctions

Question 173

Law of the Case

(3 elements)

Answer 173

• Under the law of the case doctrine, a court is ordinarily precluded from re-examining an issue previously decided by the same court, or a higher court in the same case.
• Applies only during the course of a single proceeding, and forecloses re-examination of decided issues either on remand or on a subsequent appeal. Thus, operates only within the confines of a single case – binding subsequent proceedings in the same case, both at trial and on appeal.
• Law of the case doctrine doesn’t preclude appellate court review of a lower court ruling

Question 174

Rule 54(b)

(6 elements)

Judgement; Costs

Answer 174

• Entry of final judgment on fewer than all claims or on all claims against one party but fewer than all parties.
• Discretionary with court; think of it as a partial final judgment.
• Purpose: mitigate unfairness of delaying appeal that might otherwise occur but for liberal joinder of claims, parties.

Issue in the court of appeals: whether district court abused its discretion by entering Rule 54(b) order.

Requirements

1. Multiple claims or parties

• Easy to determine if there are multiple parties
• Harder issue: adjudication of one or more but fewer than all claims.
• If a case disposes of a particular legal issue but not a claim, Rule 54(b) doesn’t apply.
• Claim: refers to cause of action or legal right.

2. Final ruling on at least one claim or party
3. No just reason for delay: Do needs of parties outweigh the interest of having just one appeal at end of case?
   * Discretion of district court (including hardship of allowing immediate appeal)

Question 175

Claim Preclusion

(3 elements)

Answer 175

Issue was decided or could have been decided as part of the case (same transaction or occurence); parties the same

1. Identity of Parties: Two lawsuits must involve the same parties or their privies
   * Privies include successors in interest, trustees, assignees/assignors
2. Original case must have produced a final, jurisdictionally valid judgment on the merits except:

• JD
• venue
• indespensable parties

3. Both actions must involve the same cause of action (same transaction or occurrence or same factual underpinning); brought or could have been brought

Question 176

Byrd v. Blue Ridge Rural Electric

(1 main question)

Answer 176

• SC Workmens Compensation Act bared injured employees from suing.
• π, NC resident, brought suit in Fed court on diversity grounds.
• Is π barred from jury trial because of SCWCA?
• Look at whether there is a countervailing federal interest.
• Here, the right to a jury trial is protected under the 7th Amendment. Therefore, federal procedure overrules.
• Issue of whether outcome is effected must be decided when the case is filed.

Question 177

General Rules of Pleading

Claim for Relief

Rule 8(a)

(3 elements)

Answer 177

(a) Claim for relief

1. short and plain statement of the grounds for the court’s jurisdiction
2. short and plain statement of the claim showing the pleader is entitled to relief
3. a demand for the relief sought, which could include relief in the alternative or diff. types
4. A pleading can violate Rule 8(a) by being too long (Gordon v. Green 4000 page complaint)
5. A pleading can violate Rule 8(a) – and thus be subject to a 12(b)(6) attack – if it is conclusory and/or does not contain facts that set forth a plausible claim for relief

Question 178

Injuctions under §1292(a)(1)

(3 elements)

Answer 178

• Orders granting, continuing, modifying, refusing to dissolve injunctions;
• TROs not included.
• Both preliminary and permanent injunctions are appealable.

Question 179

Default Judgement

Rule 55

Answer 179

Default Judgement - ▲ fails to plead or otherwise defend

1. For a certain amount = clerk enters
2. In all other cases = court determines and enters

• Res judicata effect against π

Question 180

Procedure after Removal

§1447(d)

Answer 180

A case removed and remanded cannot be appealed

30 days remove, 30 days remand

Except:

§1442 (US officers and agencies) and

§1443 (civil rights cases)

Question 181

Mandamus

Answer 181

Extraordinary or drastic circumstances involving a usurpation of power or clear abuse of discretion

E.g., judge wrongfully refused to allow a jury trial; judge wrongfully refusef to recuse himself or herself.

Question 182

Venue Analysis

(6 elements)

Answer 182

1. SMJ (if no smj then no federal court anyway)
2. PJ
3. Decide if venue is proper under §1391 or to remove/transfer (Burden of proving need for transfer lies on the moving party, consent of all parties not required) (Manley)
4. venue (motion to transfer occurrs)
5. Decide 1404 or 1406
   
   1. §1404 - transferor law controls
   2. §1406 - transferee law controls
6. Analyse venue and PJ for transferee district