Civ Pro Flashcards
Federal question jurisdiction
jurisdiction exists if claim filed under federal law, based on the face of the well-pleaded complaint
Diversity JX
requires (a) complete diversity between citizens and (b) AIC > 75,000
Complete Diversity
No plaintiff may be a citizen of the same state as any of the defendants
Citizenship of corporation
a citizen of (a) state of incorporation and of the State where it has its (b) principal place of business.
28 U.S.C. § 1332(c)(1).
“principal place of business” refers to “nerve center” (headquarters, etc).
Citizenship of a representative party
Citizenship of the representative party controls.
© Representative of decedent or minors are citizens of the decedent/minor.
Individual citizenship:
citizen of the US + domiciled in a relevant state
Domicile
domiciled if ∑ (a) physical presence (residence) and (b) intent to remain indefinitely (no intent to leave). Only one domicile
Change of domicile:
physical presence + intent to remain indefinitely at the same time
once established, presumed to continue until a new domicile is acquired.
Citizenship of a partnership
Citizens in every state where its members are citizens
Citizenship of an assignee
The assignee’s citizenship controls as long as assignment is not a sham.
e.g. Insurer is a citizen of insured state if sued under direct action statute.
© If assignor retains an interest in debt collection and assigns, assignor’s citizenship controls.
How to prove that the amount in controversy exceeds 75k
Allegation requirement
What damages are included
Good faith allegation sufficient © legal certainty that AIC will not be met.
AIC includes punitive, compensatory, and atty fees (if permitted by law or contract). © interests and costs
Aggregation of claims to meet 75k threshold
One P v. one D: can aggregate all her claims
One P v. multiple Ds: cannot aggregate unless both are jointly liable
Multiple Ps v. one D: cannot aggregate unless common interest
Aggregation of claims to meet 75k threshold
One P v. multiple Ds:
cannot aggregate unless both are jointly liable
How to prove that the amount in controversy exceeds 75k
injunctive relief
assign monetary value to P of relief to be obtained (value to P)
Supplemental JX: General rule
A federal court with SMJX over a claim may have supplemental JX over additional claims that it would not independently have JX as long as they arise out of a common nucleus of operative fact as the original claim
Supplemental JX in diversity cases
for multiple Ps v. one D:
if one P’s claim satisfies AIC, supplemental JX exists over 2nd P’s related claims as long as 2nd P does not destroy diversity
Supplemental JX
Claims made by P against parties joined under R14, 19, 20, 24
No supplemental JX
Must independently satisfy diversity JX requirements.
Supplemental JX
Claims by potential P seeking to intervene or join
No supplemental JX
Must independently satisfy diversity JX requirements.
Supplemental JX
compulsory counterclaim
yes
Supplemental JX
permissive counterclaim
No supplemental JX
Must independently satisfy diversity JX requirements.
Supplemental JX
crossclaim
Supplemental JX exists over crossclaims if
(a) related to the original claim and
(b) is not asserted by P against those made party under 14,19,20, or 24
Removal: general rule
requirement
D can remove from state court to federal court if the case could’ve been brought originally in federal court with proper SMJX.
(e.g. a FQ claim brought in state ct can be removed to fed because district court has original FQJX).
If multiple Ds, all must join in or consent to removal. © if removal based on FQ jurisdiction, only those Ds against whom the federal claim is asserted must join in or consent to the removal
Removal of a diversity case
D cannot be a citizen of the state where the original claim is filed.
Diversity case can’t be removed after 1 year of state court action unless P acted in bad faith to make the case not removable
Timing for filing a motion to removal
within 30 days of service of complaint
Personal jurisdiction: waiving
- Failure to object in answer or pre-answer motion
- Substantial participation on the merits before raising the objection
A federal court has PJX over nonresident defendant if
(a) the basis for PJX over D is authorized by long arm statute or rules; and
(b) it is permitted under the DP Clause.
Traditional basis of PJX
General in personam JX over D exists when:
(1) D has domicile in the forum state; or
(2) consents; or
(3) local service of process (D’s physical presence). © D visiting for summons, frau
Traditional basis of PJX for corporations
JX if “at-home” in the forum state.
“At-Home” if state of incorporation or principal place of business
DP requirement for PJX
Due process requires
(a) minimum contact between D and the forum state such that
(b) it is consistent with the traditional notions of fair play and substantial justice to sue to D here
Minimum contact between D and the forum state exists if
Minimum contact exists if D purposefully availed itself of the protection of the forum state’s law: D did something to purposefully take advantage of the benefits of the forum state such that he should reasonably anticipate being taken to court there
traditional notions of fair play and justice– factors to consider
Fairness factors:
(1) interest of the forum state in adjudicating matter;
(2) burden on D of appearing in the case; interest of the judicial system in efficient resolution;
(3) shared interests in the states
PJX under interpleader
National in-personam JX in statutory Interpleader—service anywhere in the US establishes PJX
PJX under bulge provision
service anywhere within 100 miles of the federal courthouse for
(a) impleading third party Ds and
(b) joining necessary parties
PJX for foreign Ds in FQ cases
If D is not subject to PJX in any state and P’s claim arises under federal law, PJX as long as D has minimum contact with the US as a whole.
In rem JX
use when PJX not available.
court has power to determine the interests of everyone in real or personal property located in the forum state
Quasi in rem JX: definition
court has power to determine the interests of parties in an action regarding real or personal property located in the forum state
Quasi in rem JX: requirement
D must have minimum contact with the forum state—usually satisfied when the action directly relates to property rights/if property is the subject of the action.
Service of process: proof
A process server must submit proof to the court, unless service is waived. However, the failure to make proof of service does not affect the validity of service
Service of process: acceptable methods under FRCP
(1) In-hand personal delivery;
(2) leaving summons at D’s dwelling with a person of suitable age and discretion–not place of employment;
(3) delivery to authorized/appointed agent
Service may be made by following (1) forum state law or (2) in the state where service is made
Service of process: defendants outside the U.S.
Any method, internationally agreed upon, that is reasonably calculated to give notice
Service of process: Service by publication
only appropriate for in rem/quasi-in rem actions if that’s the best P can do.
Must first make reasonable effort to locate all claimants and serve personally
© Class action members: permits “appropriate” notice, incl. publication notice
Venue is proper where
Venue is proper in a district where
(1) where D resides, as long as all Ds reside in the same state; OR
(2) where the claim arose (where substantial part of the events/omissions on which the claim is based occurred).
(3) If neither, any district that has PJX over.
“reside”: individual–domicile; business–everywhere PJX exists.
Timing of challenge to venue
raise at first opportunity or waived
Proper venue for foreign D
Any judicial district as long as minimum contact with forum
Proper venue under Federal Tort Claims Act
proper either in the (1) district where P resides or (2) district where the act or omission occurred.
Proper venue for claims against federal officers
proper in the district in which P resides
Proper venue for claims removed from state court
Venue is automatically proper in the district where the state court sits, even if that district wouldn’t be proper originally
Transferring venue between federal courts–requirements
Transfer is allowed only to a district with proper venue unless all parties agree otherwise.
Forum non convenience is N/A for venue transfer.
Transferring venue between federal courts–forum selection clause
Forum selection clause: must give controlling weight in all but exceptional cases, even if the clause is unenforceable under applicable state law.
Choice of law after transferring venue
If first venue was proper: apply law of the first forum/transferor.
© if venue was transferred based on forum-selection clause, transferee court must apply the second forum state law, including choice-of-law rules.
If first venue was improper: apply the law of the transferee forum.
Erie
In a diversity case, apply forum state substantive law (unless federal law on point) and apply federal procedural law.
State substantive law includes: SoL, burdens of proof, choice-of-law rules, laws that alter calculation of damages, evidentiary privileges
Federal procedural law: anything covered in FRCP, judge-jury allocation, attorney fees, rule governing whether an issue is legal or equitable (jury decides legal issues)
Erie–If no federal statute or rule is on point,
If no federal statute or rule is on point, then the court must determine whether federal common law, rather than state law,
apply state law if applying federal common law would lead to different outcomes in state and federal court, to prevent forum shopping
© unless countervailing federal interests that warrant application of federal law.
Complaint: Timing for serving D with a complaint
must serve D within 90 days of filing complaint
Complaint: content requirement
general rule ∑3
special pleading requirement
Complaint requires 3∑:
(a) short and plain statement of court’s SMJX
(b) short and plain statement showing the claimant is entitled to relief and
(c) claim for the relief sought.
Allegations must state a plausible case for recovery with factual support and not mere legal conclusions
© Special pleading requirement for (1) fraud/mistake (2) claim for special damages
Timing for filing motions against complaint
If filing 12(b) motion, must serve within 21 days of service of complaint
© 12b6, necessary party, SJX
12b Motion to dismiss based on PJX/ venue/service–Waiver
must be raised at first opportunity or waived
Motion for Judgment on the Pleadings (12(c))
May serve any time after all pleadings (answer, reply) are filed
- Applies when pleadings agree entirely on the facts and only fight over the law
- If there’s any element of factual dispute, then this is a case for summary judgment
Motion to strike usage
Use to strike a prejudicial or scandalous matter from pleading that is irrelevant to the case
Timing for answering a complaint
must answer within 21 days of service of complaint unless
(1) Rule 12 motions (answer within 14 days of notice of court action) or
(2) D waived service (answer within 60 days of P sent request for waiver
Answer to a complaint: content requirement
- Must admit or deny the allegations in P’s complaint. Failure to respond constitutes an admission; binding unless cured by amendment.© Need not deny allegation related to the amount of damages
- Must raise affirmative defenses must be raised or waived.
- Must raise compulsory counterclaim or will be precluded
Reply requirement
No need to reply to answer unless the court ordered to do so.
When not ordered to reply, P is deemed to deny any allegations in D’s answer
Timing for amending a pleading
May amend once as of right any time within 21 days of service of the pleading or within 21 days of D’s response.
After 21 days, need (1) written consent from opponent or (2) leave of court—should be freely granted unless valid reasons for denying
Amending after SoL has run:
Amending to add/change a claim
relates back to the date of original filing if claim arises out of the same c/t/o as the original pleading
Amending after SoL has run:
Amending to add/change a party ∑3
relates back if ∑
(a) claim arose out of the same c/t/o as the original pleading;
(b) new party received notice of action within 90 days of filing original complaint; and
(c) new party must have known or had reason to know that he would’ve been sued but for the mistake
Timing for answering an amended pleading
must respond within the later of 14 days after service of the amended pleading or the time remaining for response to the original pleading, unless court orders otherwise
Rule 11 sanctions and exception.
Certification: pleadings must be certified by party or attorney of record.
Sanctions under Rule 11 if documents are not filed in good faith etc
© Not subject to sanctions, if withdrew within 21 days of service of sanctions motion.
Permissive joinder ∑3
Any number of Ps or Ds can join if ∑
(a) they assert right to relief arising out of the same transaction or occurrence (or series of t/o);
(b) at least one common question of law or fact between their claim and the original claim; and
(c) there is SMJX (a party can’t destroy diversity if its’ a diversity claim; but supplemental JX will exist for claims under 75k)
Compulsory joinder ∑3
A party must be joined if ∑ 3
(a) necessary;
(b) the court has PJX over the party; and
(c) new party won’t destroy SMJX (e.g. destroy complete diversity
A party is deemed “necessary” for joinder purposes if 3 situations
A party is necessary if
(1) without him, no complete relief to existing parties; OR
(2) nonparty’s interest may be harmed if the case goes on without him; OR
(3) there is a substantial risk of double or inconsistent liability.
© Tortfeasors facing joint and several liability
Indispensable party
If a party to be joined is a necessary party but would ruin diversity, decide whether indispensable (then dismiss case) or not (proceed without
Intervention
Timing
must intervene with “reasonable promptness”
Intervention as of right ∑3
A nonparty may intervene as of right if ∑
(a) nonparty claims an interest in the subject matter of the action,
(b) the action may affect that interest, and
(c) nonparty’s interest is not adequately represented by existing parties
Permissive intervention
allowed if there’s a common question of law or fact btw nonparty’s claim and the main claim
Supplemental JX for intervenors
No supplemental JX for intervenors if JX is based on diversity; must independently satisfy 2 diversity JX requirement
Interpleader definition
Interpleader allows stakeholder (person holding property) to join all potential claimants (potential people claiming property) to property as Ds
Federal court hearing the claim has the power to enjoin other proceedings that may affect that property
Statutory interpleader requirement ∑
Each claim must satisfy SMJX, PJX, and venue requirement
SMJX: minimal diversity + AIC $500 or more
PJX: nationwide service
Venue: any district where a claimant lives.
Statutory interpleader SMJX requirement
minimal diversity + AIC $500 or more
any two adverse claimants must be citizens of different states. e.g. If stakeholder files interpleader against two claimants, those claimants must have minimal diversity
Statutory interpleader PJX requirement
PJX based on nationwide service of process
Statutory interpleader venue
Venue proper any district where claimant resides
Compulsory counterclaim, definition
a counterclaim arising out of the same transaction or occurrence as the claim to which it responds
Supplemental JX for compulsory counterclaim
Supplemental JX generally exists
SoL for compulsory counterclaim
filing of the original complaint tolls SoL for the original claim and its compulsory counterclaim
Permissive counterclaim, definition
a counterclaim that doesn’t arise out of the same c/t/o
Supplemental JX for permissive counterclaim
No supplemental JX.
Need SMJX on its own.
Crossclaim, definition
a claim against a co-party that arises out of the same transaction/occurrence as the original claim OR a counterclaim
Supplemental JX for crossclaim
Supplemental JX generally exists
Impleader definition/requirements
D may implead a third party who may be liable to D for P’s claim against D. (e.g. contributions among joint tortfeasors, indemnification)
must relate to the original claim against the defending party. Can be
(1) claims for all or part of the liability on an original claim and/or
(2) related claims against the impleaded party
Supplemental JX for impleader
If diversity case, supplemental JX exists over D’s claim against third party.
© no supplemental JX for P’s claim against third party; requires SMJX on its own
PJX for impleader
exists through bulge provision (service of process within 100 miles of federal courthouse)
Timing for impleader
implead within 14 days after serving answer to P’s complaint. With court permission thereafter
Class action certification requirement ∑4:
(a) numerousness (too many parties to be joined);
(b) common question of law/fact;
(c) typicality of claims by the class rep (their claims are representative of the claims of other class members); and
(d) adequacy of representation
Settlement or dismissal of class action
Class action settlement or dismissal requires judicial approval
Class action for diversity cases requirement
(a) complete diversity (named representatives must be completely diverse); AND
(b) at least one P has >75k claim.
© Class Action Fairness Act: Only minimal diversity required if large action 100+ members with >5mil at stake.
Discovery: 3 types of mandatory disclosures
(1) Initial disclosure
(2) disclosure of expert witnesses
(3) pretrial disclosure
Initial disclosure:
content requirement
timing
Initial disclosure:
(a) name, addresses, contact info of persons with potentially discoverable information;
(b) copies/description of relevant documents; and
(c) computation of damages claimed; and
(d) any insurance
must be made at or within 14 days after the parties’ discovery conference
Disclosure of expert witnesses:
content requirement
timing
- name of testifying experts and their expert reports (qualification, their opinions and its basis, compensation
- must occur at least 90 days before trial
Pretrial disclosure:
content requirement
timing
list of each witness to call, exhibits to present at trial other than for impeachment
must be made 30 days before trial.
Timing for making objection to pretrial disclosure
Objections must be made within 14 days of disclosure or waived, unless excused for good cause.
Rule 37 motion
definition
exception
content requirement
Rule 37 motion is a prerequisite to compel discovery before obtaining any sanctions under Rule 37.
© Immediate sanctions for
(1) failure to attend one’s own depositions,
(2) failure to respond to interrogatories, and
(3) failure to respond to a request for documents or things
Motion must include a certification of good faith that movant has/tried to confer with the nonmovant
Effect of failing to make mandatory disclosure or fail to supplement
If a party fails to disclose or supplement, party cannot use documents or witnesses that were not disclosed, unless nondisclosure was harmless or substantially justified.
Discovery general rule:
Any nonprivileged matter relevant to any party’s claim or defense and proportional to the needs of the case. (anything that might lead to something that might be admissible at trial.
Proportional to the needs of the case: courts consider importance of the issues, amount at stake, burden or expense of discovery against its likely benefits, party’s resources
Work product doctrine
Qualified immunity from discovery that protects documents and things prepared in anticipation of litigation or for trial by or for another party or her representative
Exception to work product doctrine
∑ 2
immunity can be overcome only if seeker shows ∑2:
(a) substantial need for the document/things and
(b) that the information cannot be obtained elsewhere without undue hardship
© even if shown, no exceptions for lawyer’s mental impressions
Discoverability of expert reports
If testifying expert, you can discover the report.
If not testifying expert, cannot discover the report absent exceptional circumstances
How many oral depositions can a party take
10 depositions per side, 7h/day.
Oral depositions: availability and administration requirements
Party–requires notice;
Nonparty–requires subpoena.
Administer under oath before qualified examiner
Timing for taking oral depositions
Take any time after party made mandatory disclosure
How many interrogatories can a party serve
25 interrogatories
Written Q&A
Availability for interrogatories
Available only against a party
Take any time after discovery conference.
Requirements (response deadline and content) for responses to interrogatories
Response due within 30 days
May respond with business record if answer can be ascertained and the burden of deriving the answer is substantially the same for both parties
Availability of discovery and inspection of documents
Requirement
Available only to things under the control of a party.
Must describe thing to be produced and inspected with particularity.
Timing for serving and answering discovery and inspection of documents
Serve at least 21 days after service of process.
Response due within 30 days
Availability of physical/mental exam as part of discovery
Available only against a party when ∑ (a) the party’s physical or mental condition is in controversy and (b) only for good cause.
“Good cause” requirement is met when the plaintiff placed her physical condition at issue by claiming personal injury damages
Discovery device: request for admission
Timing for responding
Failure to respond within 30 days is an automatic admission, binding in the current litigation
No need for a motion to compel
Certification of documents used in discovery
All these documents must be certified–Rule 11 violation possible if failure to respond
Sanctions for certain discovery violations
Immediate sanctions for failure to attend one’s own depositions, failure to respond to interrogatories, and failure to respond to a request for documents or things
All other cases: obtain court order to compel discovery
Electronic info rule: duty to preserve electronically stored information.
Consequences of violation of the duty
If electronic records are lost through a party’s unreasonable conduct, court can order to cure the prejudice to the other party.
If destroyed with the intent to prejudice the other party, court can (1) presume the information was unfavorable or (2) may even dismiss the case or enter default judgment
TRO, function
preserve status quo of parties before a hearing for a preliminary injunction
issue up to 14 days
TRO requirement for issuing without notice
∑ 2
TRO may issue without notice to the opposing party if you show ∑2:
(a) immediate and irreparable injury would occur absent the TRO; and
(b) an effort was made to give notice to the opposing side (or the reason notice should not be required.
Preliminary injunction–when is it issued
issued AFTER notice and a hearing on whether injunction should issue, but before a full hearing on the merits.
Preliminary injunction–how to obtain
∑ 4
A party seeking prelim injunction must show that ∑4:
(a) likely to suffer irreparable harm in its absence
(b) likely to succeed on merits;
(c) balance of equities is in his favor and (d) injunction is in the best interest of the public.
*Irreparable harm: If the affected party can recover monetary damages, the harm is not irreparable.
Voluntary dismissal w/o prejudice: Timing
P can terminate once as of right any time BEFORE
(1) D’s answer or
(2) motion for summary judgment.
© D’s pre-answer motion to dismiss does not count—P retains rights
After this, P must seek leave of court for dismissal without prejudice
Two-dismissal rule:
If a plaintiff voluntarily dismissed a prior state or federal action based on the same claim by filing a notice of dismissal, then a subsequent dismissal of the same claim by notice will be with prejudice, and thus has preclusive effect.
Involuntary dismissal w/ prejudice:
Involuntary dismissal will be with prejudice unless lack of JX, venue, or failure to join an indispensable party.
Appellate standard of review for involuntary dismissal
abuse of discretion
Summary judgment standard
court MUST grant it when materials in the record show that
(a) there is no genuine dispute as to any material fact and
(b) the moving party is entitled to judgment as a matter of law.
A genuine dispute as to material fact does not exist when
no reasonable jury could find for the nonmoving party
A factual dispute exists if movant challenges the credibility of nonmovant’s allegations
What evidence the court can consider for SJ motion:
court must consider pleadings, discovery, stipulation, affidavits
Materials need not be in a form admissible at trial, but the facts contained in the submission must be admissible at trial if there would’ve been one
Default entry by clerk
Court clerk MUST enter the party’s default when a party has (a) failed to plead or otherwise defend an action, and (b) that failure is shown by affidavit or otherwise.
P can seek a default judgment once a default is entered against a party.
No need to ask court if the relief sought is sum certain + affidavit, no need for court.
Timing for jury demand
Must demand for jury trial within 14 days after the service of the last pleading directed at the issue.
(e.g. if the issue is in the complaint then you have 14 days after the service of the answer
Right to jury for legal vs. equitable issues.
If remedy is for injunctions and other equity– No jury right.
If remedy is legal in nature–jury right.
If legal and equity issues overlap in one suit, try the legal issues (jury issues) first and equity issues (no juries) after, regardless of the order in which they arose
Right to jury limitation for money damages
Right to jury trial when damages exceed $20
Jury selection: number of jurors required for a valid verdict
Number of jurors minimum 6 maximum 12
Jury verdict must be unanimous and returned by at least 6 jurors unless stipulated otherwise. © If polling shows not unanimous, new trial OR just continue deliberate
Peremptory challenges:
Each litigant can strike 3 jurors for any reason other than race or gender
Court discretion: Several defendants or several plaintiffs may be considered as a single party for the purpose of making such challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly
Court power to dismiss jury after deliberation
Juror must participate in verdict unless excused for good cause.
The court may dismiss a juror even after deliberations have begun, as long as good cause.
Court not required to consult with the parties or seek their approval prior to excusing a juror for good cause.
Jury instructions
Jury instructions may be proposed. Court must inform parties of his actions on those proposals and the final proposed instructions BEFORE the final argument and give opportunity to object
© a party can file (and court must permit) a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court
Preserving the jury instruction issue for appeal
must object to the instruction
(a) on the record and
(b) state the grounds for the objection, BEFORE jury begins deliberation.
© A plain error with regard to the jury instructions that affects substantial rights
Jury verdict: jury’s failure to follow instructions remedies
If jury fails to follow court instructions, the court may
(1) set aside the verdict and order the jury to resume deliberations; or
(2) order new trial
Timing for raising motion for judgment as a matter of law
must raise prior to the submission of the case to the jury, at the end of opposing party’s case that is fully heard
Standard for JMOL
Standard: Viewing the evidence in the light most favorable to the nonmoving party, there is insufficient evidence for a reasonable jury to find for the nonmoving party
Court may not consider the credibility of witnesses or evaluate the weight of the evidence, and it must disregard all evidence favorable to the moving party that the jury is not required to believe
Timing for raising renewed JMOL (post-jury verdict motion that asks judge to override jury verdict)
must raise within 28 days after the entry of judgment
Prerequisite to renewed JMOL
Raise after JMOL motion was made and denied at the close of all evidence
Timing for raising motion for a new trial
Must raise within 28 days after the entry of judgment
If the court thinks verdict is against the great weight of the evidence, court’s options
a court can (1) order a new trial or
(2) offer remitter (reduction in the damages awarded by the jury) so that P can avoid a new trial
must specify the reasons in its order
Additur
Court is not permitted to offer additur (an increase in the amount of damages awarded by the jury) as the means by which the defendant can avoid a new trial
Court ability to correct clerical mistakes
A court can, with or without motion and with or without notice, correct a clerical or other mistake from a judgment, order, or other part of the record
© need appellate court permission once an appeal is docketed
Timing for motion for relief from judgment
Must file (a) within reasonable time and (b) no later than 1 year following the entry of judgment
Grounds for granting motion for relief from judgment
(1) For newly discovered evidence that could not have been earlier discovered with reasonable diligence;
(2) Fraud, misrepresentation, or misconduct;
(3) other reason justifies relief
Timing for filing appeals
Notice of appeal must be filed within 30 days from the date of entry of judgment or order.
A timely post-judgment motion will toll the 30-day limit. Timer restarts after court rules on such motion
Final judgment rule:
Generally, only final decisions and orders, not interlocutory, are reviewable.
When a court enters an order on one of the claims or resolves the claims related to only one of the parties, then that is not a final judgment.
© Partial final judgment possible if that order is expressly designated as final
General rule for reviewability of pretrial orders
Most pretrial orders are interlocutory, therefore not final.
e.g. denial of SJ motion, granting a new trial motion.
Interlocutory orders immediately appealable as of right: 3 types
orders granting or refusing to grant:
(1) injunctions,
(2) appointments of receivers, and
(3) property possession
© TRO is not injunction unless it extended beyond 14 days.
Interlocutory orders immediately appealable with court discretion: 3 types
(1) Interlocutory Appeals Act (trial court certified a controlling question of law)
(2) Collateral order doctrine
(3) Class certification decisions
Collateral order doctrine
the appellate court may review a collateral order if ∑3
(a) order being appealed conclusively determines the disputed question,
(b) resolves an important issue separate from the basis of the lawsuit, and
(c) order is effectively unreviewable on appeal from a final judgment of the lawsuit (e.g. rejection of immunity or double jeopardy, rights affected by the order would be lost if case went ahead)
Does granting an appeal of the class certification decision stay the initial proceedings
If an appeal is permitted, it will NOT stay proceedings in the district court unless the district court or the court of appeals so orders.
Standard of appellate review: factual findings
Factual findings are upheld unless clearly erroneous
Standard of appellate review: discretionary rulings
Discretionary rulings are upheld unless abuse of discretion (e.g.admissibility of evidence, decision on motions to transfer or sever, etc)
Standard of appellate review: jury verdict
Jury verdict must be affirmed if supported by substantial evidence
Issue preclusion ∑4
Issue preclusion precludes relitigation of issues of fact or law if ∑4:
(a) party to be precluded was a party to the original action;
(b) issue to be precluded was the same as that involved in the prior action;
(c) issue was actually litigated and determined by a final judgment; and
(d) determination of the issue was essential to the prior judgment
Issue preclusion: same issue of fact/law
does not matter if the two suits involve entirely different claims, as long as they have an issue in common
Issue preclusion: issues actually litigated
An issue is actually litigated when it is submitted to jury © not merely stipulated, conceded, or admitted
doesn’t apply to default judgment, summary judgment issued b/c D chose not to litigate (like by failing to admit allegation)
Issue preclusion: nonmutuality
Only the party being precluded (or its predecessor) must have had their day in court.
Offensive use of issue preclusion:
Uses
Additional limitation
Use: can use offensive IP against D who is already convicted in a crim action
Trial courts have broad discretion to determine when offensive issue preclusion should apply.
Court should not allow use of offensive IP if
(1) P could easily have joined in the earlier action, or
(2) if it is unfair to D
Claim Preclusion ∑3
precludes assertion of
(a) the same cause of action
(b) by the same parties when there has been
(c) a valid final judgment on the merits
Claim preclusion: final judgment on the merits means
Final judgment on the merits include default judgment, summary judgment, JMOL, and dismissal with prejudice
Claim preclusion: same action or cause of action means
includes all claims arising out of the same transaction or occurrence that is the subject matter of a claim asserted by the claimant
Installment: all debt owed at the time of action is one claim. © future debt is a separate claim
Claim preclusion: strict mutuality of parties (or privies)
The claimant and D must be the same and in the same roles as they were in the first suit.
- Include successors in interest (assignees, decedent-executor)
- Class action binds each member unless opted
For-cause challenges to juror
Each party is entitled to an unlimited number of challenges for cause, such as bias or a personal relationship with a litigant.
Presumption of bias if employment, stock ownership
Remedy for juror who lied during voir dire:
can obtain new trial if
(a) juror failed to answer honestly and
(b) proper answer would’ve discharged juror for-cause
Time for filing answer to a complaint if Rule 12 motion has been filed
answer within 14 days of notice of court action
Time for filing answer to a complaint if D waived service
answer within 60 days of P sent request for waiver
omnibus motion rule
exception
When a party makes a pre-answer motion raising one of defenses but omitting the others, the party may not make another. Party is deemed to have waived the excluded defenses
© 12b6, failure to join necessary party motion can be made any time before verdict
© Court may allow amend the initial motion if the party acts promptly and before the court rules on the original motion
Standard for granting renewed JMOL
if there is insufficient evidence for a jury reasonably to find for nonmoving party
Service for federal government/agency ∑3
deliver registered or certified mail to ∑3
(a) the agency/officer being sued;
(2) USAG, AND
(3) US attorney for the district where action is brought
Amending Pleadings after trial
May amend with court permission before, during, or after trial.
Permission should be freely granted when justice requires and the amendment will not violate due process
choice of law for preclusion rules, if the first claim was in state court.
To determine which preclusion rule applies, the second court looks to the law of the first forum.
E.g. If State A state court entered judgment, Federal court in State B applies State A’s preclusion rules.
Prelim injunction is valid if ∑3
It is valid only when it contains: ∑3
(a) reasons why it was granted
(b) description of prohibited act
(c) specific terms (persons bound, penalties).
Only those who receive actual notice can be held in contempt for violating
Multiparty, Multiforum Trial Jurisdiction Act of 2002:
Minimum diversity for a single accident and 75+ deaths, if
(1) (D–Accident) D resides in a state and a substantial part of the accident took place in another state,
(2) (D–D) multiple Ds reside in different states, or
(3) (Accident– Accident) Accident took place in different states
Rule 11 Monetary sanction against attorneys
discretion
©No monetary sanctions for
(1) frivolous argument or
(2) on its own
Initial disclosure time limit
must make within 14 days after the parties’ discovery conference
Inconsistent jury verdict– special interrogatories vs. general verdict.
When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may
(1) approve a judgment that is consistent with the answers, notwithstanding the general verdict,
(2) direct the jury to reconsider, or
(3) order a new trial
© If inconsistency within special interrogatories, court cannot enter a judgment; must ask the jury to reconsider or order a new trial
Inconsistent jury verdict– special interrogatories vs. special interrogatories.
Court cannot approve general verdict if the jury’s answers to special interrogatories conflict with each other.
Court must set aside the verdict and (1) ask the jury to reconsider or (2) order a new trial
Removal: effect of filing
D file a notice of removal in federal court and copy to state court. Once copy is filed, state court JX ends immediately and the case is automatically transferred; Federal court MUST accept. Federal court decides whether removal is proper, upon P’s petition for remand
Removal: consent requirement
exception
If multiple Ds, all must join in or consent to removal
© if removal based on FQ jurisdiction, only those Ds against whom the federal claim is asserted must join in or consent to the removal.
Class action requirement in addition to certification
Class action – in addition to 4 requirements, must fit within one of the three situations:
(1) separate actions would create risk of inconsistent liability;
(2) if class is seeking injunctive relief, no additional monetary damage claim that’s not incidental to the injunctive relief and NO individualized monetary relief; or
(3) common question of law/fact to class predominate over questions that affect only individual members
Fairness hearing
court must approve the proposed settlement of class action after a hearing and on finding that it is (a) fair, (b) reasonable, and (c) adequate
Class member’s right to appeal
Generally a class member who is not named as a representative does not have the rights of a party during the litigation.
© Right to appeal the court’s approval of settlement if would be bound as class and objects to proposed settlement in fairness hearing
Timing for request for jury polling request:
Request after verdict but before jury is dismissed.
If requested, the court must poll the jurors individually (court may also do so on its own initiative)
special verdict:
jury writes answers on specific factual issues and judge apply the law and enter a judgment consistent with those answers
Timing of giving jury instructions to jury:
the court can instruct the jury before the closing arguments
Timing of submitting jury instruction proposal:
at the close of evidence unless court requires sooner.
© right to file even after close of evidence if it’s on issues that could not reasonably have been anticipated at that earlier time. Q5749
Timing of opportunity to object to jury instructions:
Court must
(a) inform parties of proposed instructions and allow them to
(b) object on record outside jury presence
(c) BEFORE instructing jury and
(d) BEFORE closing argument
Rule 22 interpleader jurisdiction
must have >75000 and complete diversity
requesting waiver of service
can request before service of process by mail, name the court and date, containing a copy of complaint, 2 copies waiver form, prepaid return label.
Must give at least 30 days for D to return the waiver if US.
Who bears the cost of service of process
If P served waiver properly and
If D fails to waive and lacks good cause for failing, D must pay future process-server expenses
12b6 motion is granted when
stuff that can be considered in granting 12b6
granted if
(1) claim fails to assert a valid legal theory or
(2) fails to allege facts sufficient to support a legal claim
© can’t consider matters outside pleading.
If the court considers matters outside pleading in reviewing the 12b6 motion, it should treat the motion as a motion for summary judgment rather than a motion to dismiss
Summary judgment timing
May file any time within 30 days after the close of all discovery
Summary judgment response requirement
must either set out (1) specific facts showing a genuine dispute or
(2) affidavit or declaration giving specific reasons why she cannot present facts essential to oppose the motion.
If improper response, SJ granted.
© can’t merely repeat pleading
Choice of verdict
Judge has complete discretion to choose which verdict to use. © In a criminal jury case, a judge may order a directed verdict only for acquittal; power to convict is for the jury.
12b6 motion timing
raise in any pleading or at trial
Rule 11 Sanctions: pleading is subject to rule 11 sanctions if
(1) paper is presented for improper purpose (harass, unnecessary delay, needlessly increase the cost of litigation)
(2) claims/defense/legal contentions are not warranted by existing law or not a nonfrivolous argument for modifying existing law
(3) factual contentions have evidentiary support or would likely have it after discovery
(4) denials of factual contentions are warranted on the evidence or based on reasonable belief or lack of info
“Presenting” a pleading under Rule 11 includes “signing, filing, submitting, or later advocating” a position presented in the pleading
Rule 11 motion procedure:
must serve motion to the party before filing with court.
© if withdrew within 21 days of service of sanctions motion, not subject to sanction
Rule 11 monetary sanctions:
Court can’t impose
(1) on its own, unless court had issued an order to show cause before claim was voluntarily dismissed or settled; or
(2) against a represented party for violating the legal contention warranted by existing law or by a nonfrivolous argument
Default judgment entry by clerk
Clerk must enter DJ if ∑
(a) P claim is for sum certain
(b) P affidavit establishes amount due
(c) D failed to appear; and
(d) D is not minor/incompetent unless represented by guardian.
© Court can enter DJ even if not sum certain or D appeared or D is a minor/incompetent. but D must be given a written 7 day notice before hearing
Default judgment entry by court
Court can enter DJ even if (1) not sum certain or (2) D appeared or (3) D is a minor/incompetent. but D must be given a written 7 day notice before hearing
