Civ Pro Flashcards
What is personal jurisdiction?
About court’s power of the parties
SMJ is court’s power over the case
Because P filed the case, the court automatically has PJ over her
Test for D: does D have sufficient contacts with the forum so that exercise of PJ is fair and rsble?
What is the two-step analysis for whether there is PJ?
Exercise of PJ must first fall within state statute
and exercise of PJ must satisfy the Constitution (due process)
Same whether in fed or state court
What is the statutory step for establishing PJ?
Each state has its own statutes for PJ
Including a long arm statute granting PJ over nonresidents who perform or cause certain things within the state
On exam: if statute is provided, just apply it. If it’s not there, say you need a statute statute and that I’m going to assume the statutory requirement has been satisfied - and then move onto Const analysis.
What is the Constitutional analysis for establishing PJ?
Does the D have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?
Contact, relatedness, fairness
Contact = purposeful availment and foreseeability
Purposeful availment = contact must result from D’s purposeful availment - from her voluntary act; D must reach out to the forum and the contact must result from this targeting of the forum
Foreseeability = after finding that the D arguably availed herself of the forum, assess if it is foreseeable that D could be sued in the forum? (knew or should have rsbly anticipated that her activities would drag her to court in the state)
If we have that, go to step 2:
Relatedness = does P’s claim arise from or relate to D’s contact with the forum
If yes, related, then we have specific PJ and we can skip to rsbleness/fairness step
If not satisfied, the only way to proceed is with general PJ
General PJ requires the D to be “at home” in the forum state
A person is at home where she is domiciled
General PJ can also be established if D is served with process in the forum state (tag jurisdiction)
A corporation must also be at home - the state in which it in incorporated, and the state in which it has it PPB
If we said yes to related, then we go to step 3:
Fairness = assess whether PJ would be fair or rsble under the circumstances; only specific PJ cases; burden on D and witnesses (has to be pretty severe to not meet this burden); state’s interest; P’s interest
What are the three steps of specific PJ?
Contact, relatedness, fairness
Contact = purposeful availment and foreseeability
Purposeful availment = contact must result from D’s purposeful availment - from her voluntary act; D must reach out to the forum and the contact must result from this targeting of the forum
Foreseeability = after finding that the D arguably availed herself of the forum, assess if it is foreseeable that D could be sued in the forum?
If we have that, go to step 2:
Relatedness = does P’s claim arise from or relate to D’s contact with the forum
If yes, related, then we have specific PJ and we can skip to rsbleness/fairness step
If not satisfied, the only way to proceed is with general PJ - in separate card - deals with being at home
If we said yes to related, then we go to step 3:
Fairness = assess whether PJ would be fair or rsble under the circumstances; only specific PJ cases; burden on D and witnesses (has to be pretty severe to not meet this burden); state’s interest (interest in providing courtroom for its people who are harmed by out of state things); P’s interest (P is hurt and would find it tough to litigate in D’s home state)
What is general PJ?
Contact, relatedness = no; at home/domiciled
Contact = purposeful availment and foreseeability
Purposeful availment = contact must result from D’s purposeful availment - from her voluntary act; D must reach out to the forum and the contact must result from this targeting of the forum
Foreseeability = after finding that the D arguably availed herself of the forum, assess if it is foreseeable that D could be sued in the forum?
If we have that, go to step 2:
Relatedness = does P’s claim arise from or relate to D’s contact with the forum
If yes, related, then we have specific PJ and we can skip to rsbleness/fairness step
If not satisfied, the only way to proceed is with general PJ
General PJ requires the D to be “at home” in the forum state
A person is at home where she is domiciled
General PJ can also be established if D is served with process in the forum state (tag jurisdiction)
A corporation must also be at home - the state in which it in incorporated, and the state in which it has it PPB
So then if the D is at home in the forum state, we have general PJ and we don’t need to assess fairness/rsbleness
In a regular lawsuit, notice consists of what two documents?
(1) a summons, which is a formal court notice of suit and the timing for response; and
(2) a copy of the complaint
Together, these are called process (service of process)
P fills out a form summons for the clerk of court to sign, seal, and issue
Thereafter, P has process served in accordance with Fed Rules
Who can serve process?
Any person who is at least 18 and not a party to the action
Need not be appointed by the court
When must process be served?
If D is to be served within the US, service must take place within 90 days of filing the complaint
May be extended for good cause
What are the four methods of serving process on an individual?
Personal service = process is given to D personally anywhere (in-hand delivery)
Substituted service = serving a substitute for the D; can be done only (1) at the D’s usual place of abode (common sense determination); (2) with someone of suitable age and discretion (doesn’t have to be related); (3) who resides there
Service on agent = delivered to D’s agent; ok if receiving service is in the scope of agency; need agency relationship
State law methods = methods for serving process that are permitted by the law of the state (1) where the federal court sits or (2) where service is made are permitted
What are the two methods for service on a business or organization?
Delivering to an officer (for ex, president, treasurer) or a managing or general agent a copy of the summons and complaint; or
Using a method permitted by the state: (1) where the federal court sits or (2) where service is to be made
How can you serve a minor or incomeptent person?
May be made only by a method permitted by the law of the state in which service is to be made
How does a defendant waive service of process?
To request this waiver, P mails the D a notice and request to waive service
P must include a copy of the complaint and two copies of a waiver form, w a prepaid means of returning the form
If D executes and mails the waiver form to the P within 30 days, she waives service of process
If D signs and mails the waiver form back to the P, the P files the waiver in court; the waiver is effective then
So we act as though the D was served w process on the day the P filed the waiver form w the court
If a D waives service of process, do they waive defenses?
No, a D who waives service of process doesn’t waive any defenses like lack of PJ
When does the waiver of service become effective for timing purposes?
When D signs and mails the waiver form back to the P, the P files the waiver in court; the waiver is effective then
So we act as though the D was served w process on the day the P filed the waiver form w the court
What happens if D fails to return the waiver form for waiver of service?
If D fails to return the waiver form, and the P then has the D served personally or by substituted service - if the D didn’t have good cause for failing to return the waiver form, the D must pay the costs of service
What is subject matter jurisdiction?
About the court’s power over the case, and not over the parties
Fed courts have limited SMJ, so they can only hear certain types of case
States courts can generally hear any type of case - general SMJ
What are the federal cases that state courts can’t hear?
Patent infringement, bankruptcy, some federal securities, and antiturst claims
But pretty much everything else, a state court can hear
Can you waive SMJ like you can with PJ?
No, you can waive PJ and consent to have a lawsuit in a certain state even though you normally wouldn’t have to
But you can’t waive SMJ
If a case doesn’t invoke federal SMJ, the fed court cannot hear the case
If it does, the judgment is void
What are the two main types of cases that can be heard in federal court?
Diversity and federal questions cases
What are the two requirements for diversity of citizenship cases?
Case is either between citizens of different US states or between a citizen of a US state and a citizen of a foreign country
AND
Amount in controversy exceeds $75K
What does complete diversity mean?
If any plaintiff is a citizen of the same state as any defendant, there isn’t complete diversity
Determined when the case is filed
It’s ok if multiple Ps are of the same state, or multiple Ds are of the same state - it just can’t cross the line and you can’t have a P that’s the same state as a D
Plaintiff is a U.S. citizen domiciled in Italy. Plaintiff sues Defendant, a citizen of California, in federal court. Is there alienage jurisdiction?
Is there diversity SMJ?
No, bc P is not a non US citizen, so no alienage jurisdiction
No diversity SMJ bc P is not a citizen of a US state bc she’s domiciled in Italy
Suppose we have a non-U.S. citizen admitted to the U.S. for permanent residence (that is, a green card holder). That individual is domiciled in a U.S. state. Is she considered to be a citizen of that U.S. state?
That means litigation in which a non-U.S. citizen is a litigant might invoke alienage, but not diversity of citizenship. But that, by statute, alienage jurisdiction is withdrawn when the green card holder is domiciled in the same state as a party on the other side of the case.
How is the citizenship of a human determined?
Citizenship of a person who is a US citizen is the one state in which she is domiciled
Domicile is determined by: (1) physical presence in the new domicile; and (2) the intent to make that place your home for the indefinite future
What is needed for a person to establish a new domicile for citizenship purposes?
Domicile is determined by: (1) physical presence in the new domicile; and (2) the intent to make that place your home for the indefinite future
What is the citizenship of a corporation?
Corporation is a citizen of any state or country in which it is incorporated AND of the one state or country in which it has its principal place of business
Where is the PPB? It’s the state from which the corporation’s managers direct, coordinate, and control business activities - nerve center - headquarters
What is the citizenship of an unincorporated association?
An unincorporated association takes on the citizenships of all of its members
If it’s a limited partnership, you include the citizenships of general and limited partners
What is the citizenship of a decedent, minor, or incompetent?
You must sue them through a representative
Representative’s citizenship is irrelevant
Use the citizenship of the dec’d, minor, or incompetent
What is the citizenship for a class action?
The citizenship of the named representative(s) of the class is used
How do you calculate the amount in controvery?
Only the claim itself is considered
Litigation costs or interest are not included
Whatever the P claims in good faith is ok unless it is clear to a legal certainty that she cannot recover more than $75K
Any single P may aggregate all of her claims against a single defendant - and claims don’t need to be related to each other
Exception: joint claims - you use the total value of the claim - number of parties is irrelevant
Plaintiff-1 sues Defendant for $50,000. Plaintiff-2 sues the same Defendant for a $40,000 claim. Can we aggregate these claims?
No, can’t aggregate these claims because there are multiple plaintiffs
Can only aggregate claims of one P against one D
Plaintiff sues joint tortfeasors X, Y, and Z for $75,000.01. Has the amount in controversy been satisfied?
Yes, w joint claims, we look at total value of the claim; any one of these tortfeasors can be liable for the money
How do we determine amount in controversy for cases of equitable relief?
Equitable relief includes issuance of an injunction, specific performance, rescission of a contract, etc.
Two tests - if either is met, most courts find that amount in controversy is satisfied
One test looks at plaintiff’s viewpoint = if granted, does the relief have a value of more than $75K to the P?
Other test looks at D’s viewpoint = if granted, will the relief requested by the P cost the D more than $75K?
Include both on exam
Even if the requirements for diversity or alienage jurisdiction are met, federal courts decline to hear actions for…
Divorce, alimony, child custody, and actions to probate an estate
Can a plaintiff create diversity by moving?
Yes, if the P changes domicile after the COA occurred but before suit is actually commenced/filed, that’s fine
That’s a genuine change of citizenship, and diversity is ok
What is required for a federal question case?
For there to be FQ jurisdiction, the P’s claim must “arise under” federal law - in a well pleaded complaint
Citizenship of parties is irrelevant
Amount of controversy isn’t relevant
Well pleaded complaint rule = not enough that some fed issue is raised by the complaint; P’s claim itself must arise under federal law
Ask if P is enforcing a federal right = if yes, they get FQ
What is removal of a case?
P sues D in state court - but D would prefer to litigate in fed court
D might be able to remove the case to fed court
If removal was improper, the fed court can remand the case to state court
What is the standard for removal?
You can remove a case when the case filed in state court could have originally been brought in fed court via diversity or FQ
How is a case removed?
D files notice of removal in fed court, stating grounds of removal, which means fed SMJ (diversity or FQ)
Permission of the state or federal court is not required
D attaches all documents that were served on her in the state action
D then promptly serves a copy of the notice of removal on adverse parties and files a copy of the notice of removal in state court
What is the timing of removal?
D must remove no later than 30 days after service (not filing) of the first paper that shows the case is removable
Usually, means no later than 30 days of service of process
Who must join in the removal?
All Ds who have been served w process must join in removal
Need not join in the same document - they can file separate notices of removal
If Ds are served at different times, and a later served D initiates timely removal, the earlier served D may join in the removal even though her 30-day period for initiating removal may have expired
Plaintiff sues Defendant-1 and Defendant-2 on June 1. Defendant-1 is served with process on June 1. Defendant-1 does not remove the case within 30 days. Then, Defendant-2 is served with process on August 1. Can the second defendant now remove the case?
Yes but not alone; if D1 and D2 remove now, they can do that; new 30 day window w service on D2
Can plaintiffs remove cases?
NO - never
This is true even if the D files a counterclaim against the P that, by itself, could be heard in federal court
What are the two limitations to removing a case based solely on diversity of citizenship?
The case should not be removed if any D is a citizen of the forum state (in-state D rule); AND
The case should not be removed more than one year after the case was filed in state court
Plaintiff, a citizen of Georgia sues Defendant-1, a citizen of Minnesota, and Defendant-2, a citizen of Alabama on state-law claims for $500,000 in an Alabama state court. Can the defendants remove?
In-state defendant limitation applies bc D2 is citizen of AL and we’re in AL state court, so case should not be removed; if it is removed, it should be remanded and kicked back
What are the 30-day and 1-year removal rules?
30 days to remove from the time it becomes removable
And then no removal more than 1 year after case is filed (in diversity cases)
But exception: 1-year restriction doesn’t apply if D originally joined to prevent removal
To what court can a defendant remove a case?
To the federal district court “embracing’ the state court where the case was filed
Doesn’t matter if this venue would have been proper under the venue statutes
If a P’s motion to remand is based on a reason other than lack of SMJ, when must she move to remand?
She must move to remand no later than 30 days after the filing of the notice of removal
If P fails to do so, she waives the right to have the case remanded to state court and the case will stay in federal court
This would be for things like the citizens have diversity and $ so there’s no problem with SMJ, but one of the D’s was an in-state D so you never should have removed in the first place (this and the one year time limit)
If a P’s motion to remand is based on lack of SMJ, what is the time limit to remand?
There is no time limit on ordering remand
An objection to SMJ is never waived, and a court without SMJ is powerless to act on the case
What is supplemental jurisdiction?
A form of federal SMJ
Diversity and FQ SMJ get cases into federal court
Supplemental jurisdiction gets CLAIMS into a federal case, even though the claims can’t use diversity of citizenship or FQ SMJ
So you start with a claim that’s already in fed court based on diversity or FQ, and you want to add in another claim
Federal court must have SMJ over every single claim in a case
And remember, if there is just one P and one D, then you don’t need supp J because you can aggregate those claims in amount and type, even if they’re completely different things
What are the steps to follow on a question asking about supplemental jurisdiction?
Assess whether the claim to be joined satisfies the common nucleus test
If so, ask whether the case got into fed court under diversity or FQ
- If FQ, the limitation does not apply, so supplemental jurisdiction is ok
- If it was diversity, then apply the limitation. The limitation is as follows. There is no supplement jurisdiction if the claim:
– Is asserted by a plaintiff; UNLESS
– There are multiple plaintiffs, and the claim by one of them doesn’t meet the amount in controversy requirement
What is the common nucleus test?
Test used to determine if a claim can be added as supplemental jurisdiction
Assess whether the claim shares a common nucleus of operative fact with the claim that satisfied federal SMJ
When a claim arises from the same transaction or occurrence as the underlying case - but can be broader than that
If claim meets this test, then you ask whether original claim got in under FQ or diversity - if FQ, you’re good to go with this claim - if diversity, then if P is bringing new claim, it doesn’t get Supp J, unless it falls into the exception where multiple Ps are in a diversity claim and one of their cases doesn’t meet amount in controversy, then it could get Supp J
What is the limitation on Supp J?
Generally, in diversity cases, claims by Ps can’t invoke supplemental jurisdiction
But exception: applies when there are multiple Ps, and the claim by one of them doesn’t meet the amount in controversy requirement
Any other time a P has an additional claim in a diversity case, it can’t invoke Supp J, so the claim must satisfy diversity or FQ SMJ
Plaintiff-1, a citizen of Virginia, and Plaintiff-2, also a citizen of Virginia, sue Defendant, a citizen of Pennsylvania, on state-law tort claims. Plaintiff-1’s claim is for $100,000. Plaintiff-2’s claim arises from the same T/O and is for $50,000. Plaintiff-1’s claim meets the requirements for diversity, so that gets the case into federal court.
But Plaintiff-2’s claim does not meet the requirements for diversity because, even though citizenship is diverse, the claim does not exceed $75,000. Can the claim by Plaintiff-2 invoke supplemental jurisdiction?
Yes, meets test; limitation doesn’t apply bc there are multiple Ps and one of their claims doesn’t meet the amount in controversy requirement
Plaintiff, a citizen of Ohio, sues Defendant, a citizen of Iowa, in federal court. Plaintiff asserts two state-law claims: one for $100,000 and one for $50,000. Is this OK?
Yes, this is not a supp juris hypo; it’s a diversity hypo; we simply aggregate the claims; one P, one D, we simply add the claims even though the amounts are diff and they could be totally unrelated
What are the steps of an Erie question (determining whether a federal court should follow state or federal law)?
Step 1: Is there a fed law (Const, fed statute, FRCP, FRE) on point that directly conflicts with state law?
If so, you apply that federal law so long as it’s valid
If it’s a FRCP, it’s presumptively valid if it’s arguably procedural, and FRCPs always are - so always apply the FRCP
-
Step 2: If there is no fed law on point, fed judge must apply state law if issue is substantive
The 5 clearly substantive issues (so court must apply state law): conflict or choice of law rules; elements of a claim or defense; SOLs; tolling of SOLs; standard for granting a new trial because the jury’s award was excessive or inadequate
Fed court must follow state law in the above cases if there’s no federal law on point
(For SOL, remember that then there is a determination of WHICH state’s SOL applies in a conflict of choice analysis)
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Step 3: If there’s no fed law on point and the issue isn’t one of the above five, fed judge must determine whether issue is substantive
Some factors:
(1) outcome determinative = would applying or ignoring the state rule affect the outcome of the case? If so, probably substantive and should use state law
(2) balance interest factors = does either system have a strong interest in having its rule applied? One with greater interest should have its rule applied
(3) avoid forum shopping = If fed court ignores state law, will it cause parties to flock to fed court? If so, should probably apply state law
SMJ told us when we can take a case to federal court. Venue tells us what?
Exactly where to bring it
In which federal court to bring it
Where are the two places a P can bring a federal claim (remember these are for cases initially filed in federal court)?
Can lay venue in any district where:
All D’s reside (residential venue); venue proper in any district where a D resides as long as all Ds reside within that state
or
A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue)
For venue purposes, does it matter where P resides?
No, doesn’t matter - only Ds and COA matter
Where do defendants “reside” for venue purposes?
A human “resides” in the federal district where she is domiciled (like in PJ, state where she is domiciled)
A corporation resides in all districts where it is subject to PJ for the case (so place of incorporation and PPB; or locations of all its members for unincorporated business)
How does transfering courts work?
Unlike removal and remand, which is going from state to federal, transfer is going between federal courts
Transferee must be a proper venue and have PJ over the D - and generally those must be true without waiver by the D
But exception: under a transfer statute, court can transfer to any district, even an improper venue, if all parties consent and the court finds cause for the transferor - unlikely though that a P would consent to transfer because they picked the venue in the first place
Plaintiff sues Defendant in the District of Minnesota. Defendant moves to transfer the case to the District of Hawaii. There is no PJ over Defendant in Hawaii, and venue is not proper in Hawaii, but Defendant is willing to waive those matters. Can the case be transferred to the District of Hawaii?
No, venue and PJ generally must be proper in the transferee court without waiver by the D - but exception where transfer from a proper venue
What is a transfer from a proper venue?
If original district is a proper venue, court can order transfer based on convenience of parties, witnesses, and in interests of justice
Because transfer overrides P’s choice of forum and P chose a proper venue, the burden is on the person seeking transfer (usually D)
Court will consider both public and private factors showing that another court is the center of gravity for the case
Public: court will consider things like what law applies, what community should be burdened w jury service, desire to keep a local controversy in local court
Private: convenience for parties, evidence
Choice of law: when a diversity case is filed in a proper venue but the court orders transfer, the transferee court must apply the choice of law rules of the transferor court (but check for forum selection clauses)
Forum selection clause: provision in which the parties agree that a dispute bt them will be litigated in a partiucular place; if one party sues another in violation of the FSC, D may seek to enforce the FSC through a motion to transfer
Court will usually uphold unless unrsble; federal law governs transfer so a fed court may enforce an FSC clause even though a state court in that forum wouldn’t
When there’s a valid FSC, only public interest factors are considered for transfer; and
When transfer is to enforce an FSC, the transferee court will apply its own choice of law rules (and remember that under Erie, the fed court is required to apply the choice of law rules of the state in which it is located)
What is the choice of law when a diversity case is filed in a proper venue but the court orders transfer?
When a diversity case is filed in a proper venue but the court orders transfer, the transferee court must apply the choice of law rules of the transferor court (but check for forum selection clauses)
What effect do forum selection clauses have on venue transfers?
Forum selection clause: provision in which the parties agree that a dispute bt them will be litigated in a partiucular place; if one party sues another in violation of the FSC, D may seek to enforce the FSC through a motion to transfer
Court will usually uphold unless unrsble; federal law governs transfer so a fed court may enforce an FSC clause even though a state court in that forum wouldn’t
When there’s a valid FSC, only public interest factors are considered for transfer; and
When transfer is to enforce an FSC, the transferee court will apply its own choice of law rules (and remember that under Erie, the fed court is required to apply the choice of law rules of the state in which it is located)
What will a court do if the original venue is improper?
If original district is an improper venue, the court may transfer in the interest of justice or dismiss
When the federal court transfers a diversity case because the original venue was improper, the transferee applies its own choice of law rules - not the choice of law rules of the transferor court (where it’s coming from)
What is forum non conveniens?
FNC applies when there is another court that is the center of gravity for the case
But here, the court can’t transfer the case tot hat court because it is in a different judicial system
Court invoking FNC will stay (hold it in abeyance) or dismiss the case
Whether court dismisses or stays, idea is that the P will then sue in the other court, and the court may impose conditions on the party requesting transfer such as requiring her to waive service of process
FNC decision is based on the same public and private factors as transfer above
Other court must be available and “adequate”
Usually the forum will be adequate unless the P can get no remedy there
What commences an action in federal court?
The filing of the complaint
What must the complaint contain?
(1) statement of grounds of SMJ (doesn’t need to allege grounds for PJ or venue)
(2) a short and plain statement of the claim showing the P is entitled to relief
(3) demand for relief sought
P must plead sufficient facts to support a plausible claim
Fraud, mistake, and special damages must be pleaded with particularity or specificity
What matters must be pleaded with more detail?
Fraud, mistake, and special damages must be pleaded with particularity or specificity
Rule 12 requries the D to respond to a complaint in one of what two ways?
by motion or by answer
to avoid default, must do one of these two things no later than 21 days after being served w process
If D waived service, D has 60 days from when P mailed the waiver form to respond
When must a defendant respond to a complaint?
Must either make a motion or answer within 21 days after being served w process
If D waived service, the D has 60 days from when the P mailed the waiver form to respond
What is a rule 12(e) motion for more definite statement?
Used when the complaint is so vague or ambiguious the D simply cannot respond
Must make this motion before answering
What is a rule 12(f) motion to strike?
Asks the court to remove redundant or immaterial things from a pleading (a complaint, an answer, etc.)
Any party can move to strike
Ex: a D moves to strike allegations of fraud; or a P moves to strike an affirmative defense
What rule 12(b) defenses must be waived if not put in the first Rule 12 response (motion or answer)
Lack of PJ
Improper venue
Improper process; and
Improper service of process
(3 Ps and a V)
What rule 12(b) defenses can be raised later and are not waived if not asserted right away?
Failure to state a claim
Failure to join an indispensable party
^ Can be made as late as at trial
Lack of SMJ may be raised at ANY time - never waived
And if a court determines there is no SMJ, it must dismiss or remand if the case had been removed from state court
Suppose the defendant makes a motion to dimiss under Rule 12 and is denied? What must she do?
Serve her answer no later than 14 days after notice of the denial
Are motions pleadings?
No, they are requests for a court order
Are answers pleadings?
Yes
What two things does a defendant do in the answer?
(1) Respond to allegations in the complaint
- Admit/deny some or all of the allegations, or state that she has insufficient knowledge to admit or deny
- Failure to deny an allegation is an admission except regarding the amount of damages
(2) Raise affirmative defenses
- Inject a new fact into the case that would allow the D to win
- SOL; SOF; res judicata; self-defense, etc.
- all Rule 12(b) defenses can be pleaded as affirmative defenses
- If a D fails to assert an affirmative defense in the answer, the court may treat it as waived subject to the timing rules in Rule 12
What is the plaintiff’s and defendant’s general right to amend?
By Plaintiff: P has right to amend her complaint once no later than 21 days after the D serves her first Rule 12 response
By Defendant: D has a right to amend his answer once no later than 21 days of serving it
And note: if D’s first response was an answer in which he forgot to raise waivable defenses and forgot to raise an affirmative defense, he has a right to amend his answer to include the waivable defenses and affirmative defense
How can a party amend a pleading after the period to amend as of right?
After the period to amend as of right, the amending party must seek leave of court (or get the written consent of the opposing party)
Court will grant leave to amend if “justice so requires”
Factors courts look to: length of delay, prejudice to other party, futility of amendment
What is variance?
Variance comes up when the evidence at trial doesn’t match what was pleaded
If other party fails to object at trial, party introducing the evidence may move to amend the complaint to conform to the evidence
Plaintiff sues for breach of contract and Defendant answers. At trial, Plaintiff introduces evidence that Defendant assaulted her. Defendant doesn’t object. What happens?
bc D didn’t object, that evidence is allowed in and then the P may move to amend the complaint to include the assault
How does an amended pleading relate back and how does this affect SOLs?
An amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading
Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a SOL problem
To change a defendant, the amendment will relate back if:
(1) the amendment concerns the same conduct, transaction, or occurrence as the original;
(2) the D had such knowledge of the case such that she will be able to avoid prejudice; and
(3) the D knew or should have known that, but for a mistake, she would have been named originally
The knowledge in the last two points must have come within the period for service of process (90 days after the filing of the complaint)
Applies when the P sued the wrong D first, but the right D knew about it
What are supplemental pleadings?
Supp pleadings set forth things that happened after the pleadings were filed
There is no right to file a supp pleading
You must make a motion - in discretion of court whether it’s granted or not
The plaintiff sues the defendant for breach of contract. After the case is filed, the defendant punches the plaintiff in the nose. The plaintiff wants to add this tort claim to the existing case. Does the plaintiff make a motion to amend the complaint?
no, it must be a motion for leave to file a supp pleading; not an amendment; about an event that occurred after the complaint had already been filed
What does Rule 11 apply to?
Applies to all papers except discovery
What does a lawyer certify when she signs a document under Rule 11?
When a lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after rsble inquiry:
(1) the paper is not for an improper purpose
(2) the legal contentions are warranted by law or a nonfrivolous argument for a law change; and
(3) the factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation
What must be done before imposing a sanction?
Before imposing a sanction regardless of who filed the motion, the court must give the sanctioned party an opportunity to be heard
If monetary sanctions are imposed, where does the money go?
The money is often paid to the court, not to the other party
What does an opposing party do if the other part violated Rule 11?
The opposing party can’t immediately file a motion for sanctions
Rather, she serves the motion on the other parties but does not file with the court yet
Party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions
If she doesn’t fix it, then the motion can be filed with the court
Plaintiff sues Defendant in federal court, alleging diversity jurisdiction. Defendant is convinced there is no diversity and moves to dismiss for lack of SMJ. To Defendant’s amazement, the judge denied the motion and upheld diversity jurisdiction.
Eleven days later, Defendant served and filed his answer, asserting lack of PJ.
Is Defendant’s answer timely and has Defendant waived PJ?
he answered within 14 days after notice of the denial so he’s timely; but he waived PJ bc it wasn’t in his first Rule 12 response
What two things must be true for joinder to be permitted?
(1) joinder must be allowed by the FRCP; and
(2) there must be SMJ over the case
Can a plaintiff join unrelated claims to her original claim against an adverse party?
Yes, under the FRCP, a P may join any additional claim she against that adverse party - even if the additional claim is unrelated to the original claim
BUT there MUST be SMJ over the claim
A plaintiff, a citizen of Wisconsin, sues a defendant, a citizen of Illi- nois, for (1) a $25,000 breach of contract, (2) an unrelated $25,000 tort, (3) an unrelated violation of state consumer protection statutes for $25,000, and (4) cheating at poker, again for $25,000.
Is this allowed under the FRCP and SMJ?
Yes, a P can have as many claims as she wants against a D, even if they aren’t connected per the FRCP
For SMJ, a single P can aggregate as many claims as she wants against a single D, and those amounts can meet the amount in controversy requirement - and then there is diversity here too, so we have SMJ
What is the P is planning a case and wants to have multiple Ps or multiple Ds?
Rule is that the claims by multiple Ps or against multiple Ds must:
(1) arise from the same transaction or occurrence; and
(2) raise at least one common question of law or fact
Three passengers are injured when the taxi in which they are riding crashes. May they sue together as co-plaintiffs?
joinder is procedurally fine bc the three claims arise from the same transaction or occurrence and raise one question of who was neg; but then we need to figure out SMJ and here we don’t know citizenships or amount in controversy so unsure
Three passengers are injured when the taxi in which they are riding crashes. May they sue together as co-plaintiffs?
What if they (or any one of them) want to sue the taxi driver and the cab company as co-defendants? Not looking at SMJ, would this be OK?
unsure about SMJ; but joinder would procedurally be ok; for same reasons as above; arise from same transaction or occurrence and raise at least one common question of who is neg
After a case has been filed, the court may force some nonparty (absentee) to join in on the case, usually on motion by the D. What are the three questions to ask about that?
Is the absentee necessary (required)?
If the absentee is necessary, can the absentee be joined?
If the absentee can’t be joined, can the case proceed anyway?
In short: necessary? feasible? what if not feasible?
What does it mean for an absentee to be necessary or required?
Without the absentee, the court can’t accord complete relief among the existing parties (worried about multiple suits); or
The absentee’s interest may be harmed if she is not joined (most common on exam); or
The absentee claims an interest that subjects a party (usually the D) to a risk of multiple obligations
Remember that joint tortfeasors are never necessary
You hold 1,000 shares of stock in XYZ Corp. Rich claims that he and you bought the stock jointly and that he paid for half the stock. Rich sues XYZ Corp., seeking to have your stock canceled and the stock reissued in the joint names of you and Rich. Are you necessary?
Yes - we’re worried about harm to the absentee; if Rich wins this case, your stock gets cancelled, you can get hurt; so to avoid that hurt, we’re going to call you necessary and bring you into the case
If an absentee is labeled as necessary, a court will see if joinder of the absentee is “feasible.” Joinder is feasible if:
There is PJ over the absentee, and
There will be federal SMJ over the claim by or against the absentee - in determining whether the claim invokes diversity, the court aligns the absentee as a P or D based on the absentee’s interest
–> If joinder of the absentee if feasible, the absentee is simply joined to the case
What steps should I go through for absentees?
See if they are necessary (most likely, if their interests will be hurt; or, if no complete relief otherwise, or risk of multiple obligations)
Then if necessary, see if joinder is feasible (PJ and SMJ)
If yes, add them in
If no, examine factors (alternative forum, likelihood of harm, relief to avoid harm) and either proceed without them or dismiss case
What happens if the absentee cannot be joined?
Court must then determine whether to proceed without the absentee or dismiss the entire case
Factors:
is there an alternative forum available? (like state court)
what is the actual likelihood of harm to absentee?
can court shape relief to avoid that harm to the absentee
If party isn’t necessary, they’re called “indispensible”
What is a counterclaim?
A counterclaim is a claim against an opposing party
Once one party asserts a claim against another party, they are opposing parties
Any claim back against that party is a counterclaim
Usually, it’s a claim by a D against a P
Counterclaim is part of D’s answer
After D serves a counterclaim against P, P must respond under Rule 12 within 21 days of service of the counterclaim
What is a compulsory counterclaim?
A compulsory counterclaim is one that arises from the same T/O as the P’s claim
Unless counterclaimant has already filed the claim in another case, she must file the compulsory counterclaim in the pending case or the claim is waived
If you don’t use it, you lose it
A and B, each driving her own car, collide and each is injured. A sues B. B answers and defends the suit. Then B files a new case against A concerning the same wreck. This case is dismissed. Why?
Because this was a compulsory counterclaim and B failed to assert it
A and B, each driving her own car, collide and each is injured. A sues B. When A sued B, B moved to dismiss for improper service of process. The motion is granted and case dismissed. Is B barred from suing A because of the compulsory counterclaim rule?
No - here, B was never required to answer because she got the case dismissed. So she never had to assert the counterclaim. A counterclaim goes in your answer.
What is a permissive counterclaim?
One that does not arise from the same T/O as the P’s claim
Party is not required to file it in this case and can sue on the claim in a separate case
What should you check for with a counterclaim?
ALWAYS check for SMJ
so see if claim can invoke diversity or FQ
If neither works, check to see if there is supp jurisdiction
What is a crossclaim?
A crossclaim is a claim against a coparty
Must arise from the same T/O as the underlying action
Not compulsory - can be asserted in another case
Plaintiff, a citizen of California, sues Draper, a citizen of New York, and Sterling, also a citizen of New York, for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t know who’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.
Sterling should file a compulsory counterclaim against Plaintiff. It’s against an opposing party and arises from the same T/O as Plaintiff’s claim, so it’s a compulsory counterclaim. Now, is there subject matter jurisdiction over the compulsory counterclaim?
yes, SMJ over that compulsory counterclaim bc it invokes diversity; NY against CA and amount in controversy
Plaintiff, a citizen of California, sues Draper, a citizen of New York, and Sterling, also a citizen of New York, for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t know who’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.
Sterling also may file a crossclaim against Draper. It’s a claim against a co-party and arises from the same T/O as the underlying case, so it’s a crossclaim. What about subject matter jurisdiction based on diversity or an FQ?
doesn’t invoke a FQ, and doesn’t invoke diversity, bc it’s by NY against NY; so no SMJ and can’t come in on those grounds
Plaintiff, a citizen of California, sues Draper, a citizen of New York, and Sterling, also a citizen of New York, for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t know who’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.
Sterling also may file a crossclaim against Draper. It’s a claim against a co-party and arises from the same T/O as the underlying case, so it’s a crossclaim.
Would there be supplemental jurisdiction over this crossclaim?
yes, supp juris; meets common nucleus test bc arises from same TO as underlying case; and bc this case got into fed ct on diversity, limitation applies, but this is a claim by a D and the limitation only applies to claims by P, so supp juris is fine
Plaintiff, a citizen of California, sues Draper, a citizen of New York, and Sterling, also a citizen of New York, for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). It’s a diversity case in federal court. Sterling doesn’t know who’s at fault between the two drivers, but knows his car (worth $200,000) is totaled.
Say Sterling files a crossclaim against Draper. If Draper had a claim he then wants to file against Sterling, what would it be?
counterclaim bc it’s against an opposing party; once one asserts a cross claim against the other they are now opposing parties so the claim back has to be a counterclaim
What is an impleader?
An impleader claim (also called third-party claim) is one where a defending party is bringing in a new party
As to the impleader claim, the party bringing the claim is called a third-party P and the new party is called a third-party D
Impleader claim is used to shift to the TPD the liability that the D will owe to the P
so if the D is found to be liable to the P, he will try to get the TPD to pay all or part of his own liability (look for indemnity or contribution)
What does indemnity do?
Indemnity shifts liability completely (so the TPD must cover the full claim)
What does contribution do?
Contribution shifts it pro-rata (so the TPD must cover a pro-rata portion of the claim)
What is the process for impleading TPD into the case?
To implead a third party, the D must:
(1) file a third-party complaint naming the TPD and
(2) have that complaint formally served (that is, served like an original complaint) on the TPD
There is a right to implead within 14 days of serving the answer
After that, court permission is needed
After the TPD is joined (impleaded), can the plaintiff get involved with asserting claims?
Yes, after the TPD is joined, the P may assert claims against the TPD, and the TPD may assert claims against the P, that arise out of the T/O of the underlying case
Do the impleaded parties/claims need to have SMJ?
YES ALWAYS
Assess each claim separately for SMJ
Try diversity or FQ first
Then try supp juris
Remember limitation for diversity cases: limitation applies only to claims by the P, if at all, and a TPD is not a P
A plaintiff, a citizen of Missouri, sues a defendant, a citizen of Kansas, in federal court for $100,000 invoking diversity SMJ. The defendant impleads a TPD, a citizen of Missouri, for indemnification of the full $100,000. Is there SMJ over the impleader claim?
yes, SMJ over impleader, bc it’s a claim by a KS against MO; exceeds 75K
A plaintiff, a citizen of Missouri, sues a defendant, a citizen of Kansas, in federal court for $100,000 invoking diversity SMJ. The defendant impleads a TPD, a citizen of Missouri, for indemnification of the full $100,000.
Does it matter that the plaintiff and the TPD are citizens of the same state?
doesn’t matter that the P and the TPD are citizens of same state; P isn’t a party to this claim so her citizenship is irrelevant; look at each claim individually; diversity and amount are fine
A plaintiff, a citizen of Missouri, sues a defendant, a citizen of Kansas, in federal court for $100,000 invoking diversity SMJ. The defendant impleads a TPD, a citizen of Missouri, for indemnification of the full $100,000.
Would there be SMJ if TPD (Missouri) asserted a transactionally related claim against Plaintiff (Missouri)? There is no diversity because they are co-citizens. Let’s say the claim arises under state law, so there is no FQ. Is there supplemental jurisdiction?
common nucleus: meets this test bc the claim can only be asserted if it arises out of TO, by definition; limitation: no, bc this is a claim by TPD and the limitation only takes away supp juris by claims by Ps; so gets supp juris
A plaintiff, a citizen of Missouri, sues a defendant, a citizen of Kansas, in federal court for $100,000 invoking diversity SMJ. The defendant impleads a TPD, a citizen of Missouri, for indemnification of the full $100,000.
Would there be SMJ if Plaintiff (Missouri) asserted a claim against TPD (Missouri)? Again, there is no diversity or FQ jurisdiction. What about supplemental jurisdiction?
meets common nucleus test, but this is limitation in action; got into fed court under diversity and this is a claim by a P; so no supp juris; only time they get it is hypo 5D (multiple Ps and one doesn’t meet amount in controversy) and this isn’t that
What is intervention?
A nonparty absentee uses intervention to bring herself into the claim
She chooses to come in either as a P to assert a claim or as a D to defend a claim
Court may realign party if it thinks it came in on wrong side
Application to intervene must be “timely”
Intervention can be “of right” or “permissive”
What is an intervention of right?
If absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties, intervention is “of right”
but make sure to have SMJ!
What is a permissive intervention?
If absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive and discretionary w court
Usually allowed unless it would cause delay or prejudice to someone
But make sure to have SMJ!
What is interpleader?
Interpleader applies if separate actions might result in double liability against a stakeholder
Interpleader suit permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it
Rule 22 interpleader: requires (1) compelte diversity bt the stakeholder and all adverse claimants, and in excess of $75K in issue, or (2) a federal question claim
Statutory interpleader: requires only diversity bt any two contending claimants and $500 to be in issue
What is a class action and its requirements?
Class action is a case in which representatives sue on behalf of a group
Requirements (all four must be demonstrated):
Numerosity = there are too many class members for practicable joinder
Commonality = some issue in common to all class members
Typicality = class rep’s claims are typical of the claims of the class
Representative Adequate = class rep will fairly and adequately represent the class
What are the three types of class actions?
Type 1: Prejudice = class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party = rare
Type 2: injunctive or declaratory relief = seeks n injunction or declaratory judgment bc the D treated the class members alike = generally cannot seek damages
Ex: group claims employer is wrongfully refusing to provide them w vacation time as required by law; seeks injunction requiring employer to provider vacation time
Type 3: common question or damages = (1) common questions must predominate over individual questions; and (2) the class action is a superior method to handle dispute = mass torts
Ex: bus crash; individual questions about damages but common question about if bus driver was negligent may predominate; superior to 80 different suits for each passenger
How does the court certifiy a class for a class action?
Court must grant motion to certify it as a class action
And must define the class and the class claims, issues, and defenses; and
Appoint class counsel, who must fairly and adequately represent the interests of the class
What notice is required for the types of class action claims?
Notice not required in Type 1 or Type 2
In Type 3, court must notify class members that they are in a class
Means individual notice to all rsbly identifiable members
Notice, paid for by rep, tells class members things like:
- they can opt out
- they will be bound by the judgment if they don’t opt out; and
- can enter a separate appearance through counsel
Is there a right to opt out of a type 1 or type 2 class action?
no - all class members are bound by the judgment
But in type 3 they can opt out and then they are not bound
How is a class action settled?
Parties can settle or dismiss a certified class action only with court approval
In all three types, court must give notice to the class members to get their feedback on whether the case should be settled or dismissed
If it’s a type 3 class, the court also might refuse to approve the settlement unless members are given a second chance to opt out
How does SMJ work in class actions?
if class action asserts right under federal law, FQ juris may be used
For diversity cases, only the citizenship of the class rep is considered, and her claim must exceed $75K - if she’s good, then everyone else is good and ignored
CAFA grants SMJ separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action if:
(1) there are at least 100 members;
(2) any class member, not just the rep, is of diverse citizenship from any defendant; and
(3) the aggregated claims of the class exceed $5 million
Also, any one defendant, even an in-state defendant, may remove the case from state to federal court
What are the initial required disclosures for discovery?
Information that each party must give to other parties - even though the other parties haven’t asked for it
Within 14 days of the Rule 26(f) conference, each party must disclose certain information
(1) Names, numbers, and address of people w discoverable information if info might be used to support claim or defense
(2) Documents (ESI, tangible things) if might be used to support claims or defenses
(3) computation of damages
(4) insurance coverage - that might cover all or part of the judgment
When must initial required disclosures for discovery be made?
Unless there’s a court order to the contrary, within 14 days of the Rule 26(f) conference, each party must disclose certain information
Employee sues Company, alleging that Company wrongfully fired Employee because of her age. Company has an internal memo suggesting that Employee’s age was the basis for the firing. Must Company disclose the existence of this memo in its required disclosures?
no, bc this will not be used to support the company’s case
What is the penalty for failing to disclose something that was requried to be disclosed as an initial disclosure?
If party fails to disclose material that was required to be disclosed, that party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless
What must be disclosed about experts during discovery (not as initial disclosure)?
Each party must identify expert witnesses who may provide testimony at trial
Consulting experts and their opinions are generally not discoverable absent exceptional circumstances
As to an EW who may be used at trial, each party must generally disclose to the other parties the identity of and written report prepared by the EW
What must an EW’s written report include?
Written report must include:
Opinions that the EW will express
The bases for the opinions
The facts used to form the opinions
The EW’s qualifications
How much the EW is being paid
*Earlier drafts of the EW report and communications bt the lawyer and the EW are work product
What happens if a party fails to disclose EW information that they needed to disclose?
The party cannot use the EW in the case unless the failure was justified or harmless
What are the required pretrial disclosures?
No later than 30 days before trial, the parties must give detailed information about their trial evidence, including identity of witnesses who will testify, documents, ESI, other things they intend to introduce at trial
No surprises
When can a party send discovery requests to the other party?
Absent a court order to the contrary, a party can’t send discovery requests to another party until after the Rule 26(f) conference
Minor exception: requests to produce can be served earlier (once 21 days has passed since service of process) - such a request is treated as though it was served at the Rule 26(f) conference
What is a deposition?
Live testimony of parties or nonparties, under oath, given in response to questions by counsel
Does a party have to be served with a subpoena to testify at a deposition?
No, a notice of deposition is sufficient to compel a party’s appearance
Does a nonparty have to be served with a subpoena to testify at a deposition?
Yes, a nonparty must be served with a subpoena or else they aren’t required to attend
If party noticing the deposition fails to send a subpoena and the deponent fails to show up, the noticing party may be liable for costs to the other parties
What is a subpoena duces tecum?
Requires the deponent to bring requested materials with her to the deposition?
How many depositions may a party take and what are the time limits of them?
All absent a court order to the contrary:
Party cannot take more than 10 depositions or depose same person twice
Depositions can’t exceed one day of 7 hours
How may depositions be used at trial?
(1) to impeach the deponent;
(2) for any purpose if the deponent is an adverse party; or
(3) for any purpose if the deponent (regardless of whether a party) is unavailable for trial unless that absence was procured by the party seeking to introduce the evidence
What are interrogatories?
Written questions to be answered in writing under oath
Only sent to parties
Maximum number is 25 (absent court order)
Answered within 30 days from their service
Answer based on information rsbly available
If answers can be found in business records and the burden of finding the answer would be about the same for either party, the responding party can allow the requesting party to have access to the records
What is a request to produce?
Asks a party to make available for review and copying documents or things, including ESI, or to permit entry on designated property to inspect, measure, etc.
Must respond in writing within 30 days of service
Only to parties, but nonparties can be served w subpoenas to require her to disclose the same types of information
What is required to obtain a medical exam?
A court order is required to compel a party to submit to a med exam
Requesting party must show:
(1) that the person’s health is in actual controversy and
(2) good cause
Requesting party chooses the licensed med professional to perform the exam
If the perosn who submit to the med exam requests a copy of the report given to the requester, she must (on request) produce all med reports by her own doctors about that same med condition
What are requests for admission?
Written request that someone admit certain matters
Must respond within 30 days
Rsble inquiry must be made before answering
Must respond, deny, or state she doesn’t know
If party fails to deny a proper request, the matter is deemed admitted
What is the signature requirement for discovery?
parties sign substantive answers to discovery under oath
Rule 11 doesn’t apply but by another rule, every discovery request and response is signed by counsel certifiying it is:
Warranted;
Not interposed for an improper purpose; and
Not unduly burdensome
What is the standard scope of discovery?
Party can discovery anything relevant to a claim or defense and proportional to the needs of the case
Discoverable is broader than admissible
Even harmful information is discoverable, unlike in initial disclosures where you didn’t have to provide that yet
Plaintiff seeks discovery from Defendant of relevant emails. The emails have been deleted from Defendant’s server. They can be recovered or restored only at enormous cost. Defendant asserts that the material is “not reasonably accessible because of undue burden or cost.” Defendant can move for a protective order; alternatively, Defendant can object to discovery and Plaintiff will have to move to compel discovery. Suppose the court finds the emails are not reasonably accessible because of undue burden or cost. Now what does Plaintiff try to do?
If Plaintiff does show good cause for discovery, the court can order production and allocate expenses between the parties.
What are protective orders for ESI?
A D can move for a protective order or object to discovery of ESI
Undue costs are considerations for ESI
Court may allocate costs if P shows good cause to obtain despite costs
What is the work product that is protected from discovery?
Work product is material prepared in anticipation of litigation and is protected
Work product sometimes may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way = qualified work product
Absolute work product = opinion work product = mental impressions, conclusions, opinions, or legal theories of the disclosing party - can’t be discovered
What is qualified work product?
Work product sometimes may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way
What is absolute work product?
opinion work product = mental impressions, conclusions, opinions, or legal theories of the disclosing party - can’t be discovered
Plaintiff sues Defendant regarding an auto collision between them. Defendant asks Private Investigator to find the identities of the eyewitnesses to the wreck. Doing so costs thousands of dollars in investigation fees. Plaintiff serves an interrogatory on Defendant asking for the names of all persons who have information relevant to the case. Is the identity of the witnesses work product?
No, by a special rule, the identity of people w discoverable info is discoverable
How does a party assert a privilege or work product?
If a party withholds discovery or seeks a protective order based on privilege or work product, she must claim the protection expressly and describe the materials in detail
Privilege log = lists the materials protected by date, author, recipient, and privilege or protection claimed - must be in enough detail to allow judge to determine whether the material is protected
What are the three ways a court gets involved in discovery disputes?
Party seeks protective order = if responding party thinks discovery request subjects her to annoyance, embarrassment, undue burden or expense, she can move for protective order - must certify that she tried in good faith to resolve the issue without court involvement - met and conferred
–> Court can deny discovery, limit discovery, or permit discovery on specified terms
Party responds, but not fully = if party responds but fails to answer some questions because she objects to them
–> she may be compelled to comply by court order
No response to discovery request = fails completely to attend dep, respond to rogs or RFP
–> will be subject to various sanctions plus costs
What must a party show before seeking sanctions?
Must certify that she tried in good faith to get the information without court involvement
Tried to meet and confer
What are the sanctions for responding, but not fully, to a discovery request?
Two step process:
(1) requesting party moves for an order compelling the producing party to answer the unanswered questions, etc., plus costs of bringing the motion
(2) if producing party violates the order compelling her to answer, court can enter “merits” sanctions, along w costs and atty’s fees for bringing the motion; producing party could be held in contempt for violating court order (except for med exams, no contempt there)
What are the sanctions for no response at all to discovery requests?
If producing party fails to respond at all, court can enter merits sanctions plus costs
No need to get an order compelling answers; you go directly to merits sanctions
What are the five options for merits sanctions?
Judge can choose from the below:
(1) establishment order (establishes facts as true)
(2) strike pleadings of the disobedient party
(3) disallow evidence from disobedient party
(4) dismiss P’s case (if bad faith shown)
(5) enter default judgment against D (if bad faith shown)
What happens if there was a failure to preserve ESI when litigation is rsbly anticipated?
when litigation is rsbly anticipated, parties must preserve discoverable information
ESI has special rules
Suppose ESI is truly lost and is lost bc the party in control of it failed to take rsble steps to preserve it
Court may order measures to cure the harm caused to the other party
What is preliminary injunctive relief?
Preliminary injunction preserves status quo until trial
A court order that the D either do something or refrain from doing something
Before getting a preliminary injunction, to maintain status quo until hearing on the preliminary injunction, you may seek a TRO
What is a temporary restraining order?
A TRO is issued to preserve the status quo until a hearing for a preliminary injunction can be held
Can be issued ex parte, which means a court has done something without giving notice to the other party
Court will issue a TRO ex parte only if:
(1) the applicant files a paper under oath clearly showing that if the TRO is not issued, she will suffer immediate and irreparable harm if she must wait until the other side is heard
(2) the applicant’s lawyer certifies in writing her efforts to give oral or written notice to the D or the D’s lawyer (or why notice should not be given in this case)
If court issues TRO, order must be served on D as soon as possible
A ruling granting or denying a TRO ordinarily may not immediately be appealed
When will a court issue a TRO ex parte?
Only if:
(1) the applicant files a paper under oath clearly showing that if the TRO is not issued, she will suffer immediate and irreparable harm if she must wait until the other side is heard
(2) the applicant’s lawyer certifies in writing her efforts to give oral or written notice to the D or the D’s lawyer (or why notice should not be given in this case)
What are the contents of a TRO?
A TRO must state its terms specifically, describe in detail what the D must do (or refrain from doing), state why it was issued, and state why the threatened injury to the P was irreparable
What is the duration of a TRO?
TRO is effective for no more than 14 days, but the restrained party may move to dissolve or modify it earlier
If applicant shows good cause before expiration, it can be extended for up to another 14 days
So a TRO cannot extend beyond 28 days
If extended beyond 28 days, may be treated as a preliminary injunction
Can a preliminary injunction be issued ex parte?
No, notice has to be given
What must the applicant show for a preliminary injunction?
(1) likely to suffer irreparable harm if injunction is not issued;
(2) likely to win on the merits of the underlying case;
(3) balance of hardship favors her; and
(4) injunction is in public interest
What must the preliminary injunction state?
Must state its terms in specificity, describe in detail what the D must do or refrain from doing, and state why it was issued
And in granting/denying prelim injunction, court must make specific findings of fact and separate conclusions of law
Can an order granting a preliminary injunction be appealed?
Yes, can be appealed as of right
Can a TRO be appealed?
A ruling granting or denying a TRO ordinarily may not immediately be appealed
Can a P voluntarily dismiss her case without court permission?
Yes, if the P wants to withdraw her case, she can do so without a court order before the D serves an answer or motion for summary judgment
Parties can also stipulate to a voluntary dismissal without court order
How does a plaintiff’s voluntary dismissal WITH court permission work?
Once D has answered or moved for SJ and P wants to withdraw her case, she can make a motion for voluntary dismissal, which court has discretion to grant
First voluntary dismissal is without prejudice
Means that P can refile the case - but you can only get this once
Second voluntary dismissal is with prejudice, which operates as an adjudication on the merits and takes away the P’s ability to refile the case
What is a voluntary dismissal without and with prejudice?
First voluntary dismissal is without prejudice
Means that P can refile the case - but you can only get this once
Second voluntary dismissal is with prejudice, which operates as an adjudication on the merits and takes away the P’s ability to refile the case
What might happen if the D doesn’t respond to the complaint in time?
If D doesn’t respond in time (21 days after bein gserved w process), a default and a default judgment might occur
What is a default?
A default is a notation by the court clerk on the docket sheet in the case
Doesn’t happen automatically
P must move for entry of default
P must demonstrate that D failed to respond in time (21 days for normal service, 60 days if waived)
Until a default is actually entered, the D can respond by motion or answer even beyond 21 days
What is the effect of a default?
Cuts off D’s right to respond
Entry of default doesn’t automatically entitle P to relief though
Must seek default judgment
How can the clerk of the court enter a default judgment?
Clerk can enter default judgment if:
(1) the D has made no response at all;
(2) the claim itself is for a sum certain in money;
(3) P gives an affidavit of the sum owed; and
(4) the D is not a minor or incompetent
D doesn’t get a hearing if the above are met - clerk just grants DJ
If any of these is NOT true, P must apply to court for DJ
If a clerk can’t enter a DJ, what does the judge do?
judge will hold a hearing and has discretion whether to enter the judgment
D is entitled to notice of the hearing if she has appeared in some fashion in the case
P’s recovery in a hearing for a DJ is limited to what is pleaded in the complaint
What does the D have to show to set aside a DJ?
D may move to have the court set aside a default or DJ by showing:
(1) good cause and
(2) a viable defense
If the plaintiff’s complain fails to state a claim, what can happen?
It can be dismissed
What is a motion to dismiss for failure to state a claim called if the motion is made after the defendant has answered?
It’s called a motion for judgment on the pleadings
What does a judge consider in a 12b6 - motion to dismiss for failure to state a claim?
Court ignores the P’s legal conclusions
Looks only at P’s allegations of fact on the face of the complaint and asks “if these are true, do they state a plausible claim”?
If no, judge may allow P to amend her complaint to try to state a claim, but may be dismissed
What is a motion for summary judgment?
Used after the case has been filed and P has survived any Rule 12 motions
Weeds out cases in which no trial is needed
Only reason to have a trial is to resolve a dispute of material fact
What must the party moving for SJ show?
(1) there is no genuine dispute on a material fact; and
(2) she is entitled to judgment as a matter of law
When can a party move for SJ?
Any party can move for SJ no later than 30 days after close of discovery
Can be for partial judgment and, for ex, the case can go to trial just for damages
Can the court look at evidence in a motion for SJ?
Yes, unless a 12b6 motion where you just look at the facts
court views evidence in light most favorable to the nonmoving party
Evidence is anything taken under oath and normal evidence
court may allow nonmoving part some time to gather additional evidence and ruling can be delayed
What is a rule 26f conference and when does it happen?
At least 21 days before the court’s scheduling order, parties meet and confer to discuss roadmap of case
Must present to the court a detailed discovery plan no later than 14 days after the rule 26f conference
For what claims is there a right to a jury trial?
For civil actions at law, but not in suits at equity
What if a case includes both law and equity (like a claim for damages and equitable relief)?
Facts underlying a damages claim will be tried to the jury; facts relating wholy to an equity claim are tried to the judge; if a fact goes to both, the jury decides it
When must a party demand a jury?
A Party must demand the jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue
If a party fails to do so, she waives the right to a jury
Last pleading addressing a jury issue is usually the answer
What are for cause challenges?
Parties have unlimited number of challenges for cause
Ex: because the potential juror will not be impartial
What are peremptory challenges?
challenges for which the party states no reason
Generally, each side is limited to three peremptory challenges
may be used only in a race and gender neutral matter
What does the court inform the parties about jury instructions?
Before final argument and instruction, and on the record, the court informs the parties of (1) what instructions it will give and (2) what proposed jury instructions it rejected
Must a party object to jury instructions it disagrees with?
Yes, if objections are not made before the jury is charged, the objection is waived
A court can revisit that jury instruction only for clear error that affected a party’s rights
Even if the party made an objection off the record first, they need to do it on the record
What are the three types of verdicts?
General verdict = just says who wins and what relief is
Special verdict = jury answers, in writing, specific written questions about the facts in dispute, but it does not say who wins or loses
General verdict with written questions = jury not only gives a general verdict, but also answers specific questions submitted to it
What is a motion for judgment as a matter of law (JMOL)?
Directed verdict
If judge grants JMOL, case will not go to jury - judge grants the motion and enters judgment
Based on evidence presented at trial
Standard for granting motion is that rsble people could not disagree on the result
Party can move for JMOL after the other side has been heard at trial on the issue
What is the standard for granting a JMOL?
Standard for granting motion is that rsble people could not disagree on the result
What is the timing of a motion for JMOL?
Party can move for JMOL after the other side has been heard at trial on the issue
What is a renewed motion for judgment as a matter of law (RJMOL)?
same as JMOL but comes up after trial
If RJMOL is granted, court enters judgment for the party that lost the jury verdict
When jury gets it wrong, RJMOL and then judge grants it and corrects it because jury was unrsble in verdict and it should have come out other way
as with JMOL, views evidence in light most favorable to nonmoving party
Must be made within 28 days after entry of judgment
Prerequisite: must have moved for FJMOL at the proper time at trial
Failure to do so waives RJMOL
And RJMOL must be based on same grounds as JMOL motion
What is the timing of a RJMOL?
Must be made within 28 days after entry of judgment
Can a party move for RJMOL if they didn’t move for a JMOL at trial?
NO
Prerequisite: must have moved for FJMOL at the proper time at trial
Failure to do so waives RJMOL
And RJMOL must be based on same grounds as JMOL motion
What is a motion for a new trial?
Judgment is entered, but some error at trial requires that we should start over and have a new trial
New trial can be granted on any nonharmless error that makes the judge think there should be a do-over
Must move for a new trial within 28 days of the judgment (same as RJMOL)
Some reason are:
(1) Judge gave erroneous jury instruction;
(2) New evidence was discovered that could not have been discovered before w due diligence
(3) misconduct was committed by juror, party, lawyer, etc.
(4) judgment is against weight of evidence; and
(5) damages are inadequate or excessive
When must a party move for a new trial?
Must move for a new trial within 28 days of the judgment (same as RJMOL)
If a party waived their right to RJMOL by not moving for JMOL at trial, could they move for a new trial?
Yes on the grounds that the verdict is against the weight of the evidence
When could remittitur and additur be used?
Used to avoid a new trial
Ground for new trial on this basis is that the jury’s damages figure “shocks the conscience” - either too high or too low
What is remittitur?
Playing hardball w P
Court offers P a choice: remit part of the damages award or go through a new trial
but note: court can’t simply lower the figure that was set by the trial
So court must give P that choice
Allowed in both state and fed court
What is additur?
Additur is playing hardball w D
Court offers D a choice: add to the damage award or go thorugh a new trial
Only allowed in state court - not fed court
What is a motion for relief from order or judgment?
After a judgment is entered, it’s possible to obtain relief from it under certain circumstances
Grounds = Timing
(1) clerical error = any time
(2) mistake, excusable neglect (including viable defense) = rsble time (never more than one year)
(3) fraud, misrepresentation, or misconduct by opposing party = rsble time (never more than one year)
(4) newly discovered evidence that could not have been discovered w due diligence for a new trial motion. Newly discovered facts must have existed at time of trial = rsble time (never more than one year)
(5) judgment is void (for ex, court had no SMJ) = rsble time (but no maximum)
Plaintiff sues Defendant. After trial, judgment is entered for Defendant. Six months later, Plaintiff finds new evidence that Defendant concealed that would likely show that Plaintiff should win. The evidence must be truly new and not simply cumulative of what we had before. Plaintiff moves to set aside the judgment so the court can hold a new trial. It may be granted if:
this evidence existed but could not have been discovered w due diligence in time to move for a new trial; you move for a new trial no later than 28 days after verdict; so here we’re good to go
The losing party has a right to appeal if the court’s order is … what?
A final judgment
A final judgment is what?
One that determines the merits of the entire case
to determine if an order is a final judgment, ask “after making the ruling:” does the trial court have anything left to do on the merits of the case?
If yes, it’s not a final judgment but rather an interlocutory order - which can be appealed under certain circumstances
If answer is no, judgment is final and appealable
Are remand orders reviewable on appeal?
Generally no
Plaintiff sued Defendant. Defendant moves for summary judgment, supported by overwhelming admissible evidence that Defendant did nothing wrong. The court denies the motion. Defendant appeals that decision to the court of appeals. What result?
appeal dismissed; denial of motion for SJ is not a final judgment and thus not appealable; does the tct have anything left to do on the merits of the case, yes we have to go to trial
Plaintiff sues Defendant and the case proceeds through discovery and to trial. The jury returns a verdict for Plaintiff and the court enters judgment for Plaintiff based upon the verdict. A week later, Defendant moves for a new trial. The court grants the motion for new trial. Plaintiff appeals that decision to the court of appeals. What result?
no; the granting of a new trial is not a final judgment and thus not appealable; no appeal, you have to hold the new trial
Plaintiff sues Defendant and the case proceeds through discovery and to trial. The jury returns a verdict for Plaintiff and the court enters judgment for Plaintiff based upon the verdict. A week later, Defendant moves for a new trial. The court denies the motion for new trial. Can Defendant appeal?
yes, this is a final judgment; nothing left to do on the merits of the case; right to appeal; D must file notice of appeal in the district court no later than 30 days after that judgment
If the judgment is final, where and when is the notice of appeal filed?
Notice of appeal must be filed with the district court within 30 days after entry of the judgment that is being appealed
Extended to 60 days if US is a party to the action
What interlocutory orders may be immediately appealed?
(1) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction)
(2) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships
(3) decrees in admiralty cases that find liability but leave damages to be assessed later
(4) a patent infringement order where only an accounting is wanting, and
(5) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.
Does the exception permitting preliminary or permanent injunction orders to be appealed even though they are interlocutory include TROs?
No, not a normal TRO (14 day and then renewed for another 14 days)
But, if a TRO is renewed beyond 28 days, it becomes a preliminary injunction that may be appealed
The Interlocutory Appeals Act allows appeal of a nonfinal order if:
(1) the district judge certifies that it involves a controlling issue of law;
(2) as to which there is substantial ground for difference of opinion (and an appeal would materially advance the conclusion of the case); and
(3) the court of appeals agrees to hear it (at least two appellate judges)
discretionary
The appellate court has discretion to hear an appeal on an issue if that issue (collateral order doctrine):
(1) is distinct from the merits of the case;
(2) involves an important legal question; and
(3) is essentially unreviewable if parties await a final judgment
The Eleventh Amendment provides that states and “arms of states” are immune from suit in federal court. (Not just immune from damages, but immune from being sued at all.) Plaintiff sues State Highway Department (“SHD”) for damages. SHD claims it is an “arm of the State” and thus immune from suit. The district court rejects the argument and orders SHD to litigate. Can SHD try to appeal this ruling as a collateral order?
yes, meets doctrine
(1) is distinct from the merits of the case;
(2) involves an important legal question; and
(3) is essentially unreviewable if parties await a final judgment
What can a judge do when there are multiple claims or multiple parties and a judge enters judgment into fewer than all of them?
So it wouldn’t be a final order (and thus not appealable) if there were other outstanding claims or parties
So a court may direct entry of a final judgment if it expressly finds no just reason for delay
Plaintiff sues Defendant. Defendant files a counterclaim against Plaintiff. The court enters partial summary judgment in favor of Defendant on the first claim. This is not appealable as a final judgment because the counterclaim is still pending. Could the district court expressly direct entry of a final judgment on Plaintiff’s claim against Defendant and allow appeal of that issue now?
yes, if it also makes an express finding that there is no just reason for delay
Is an order granting or denying a certification for a class action immediately reviewable?
Yes, court of appeals has dicretion to review an order granting or denying certification of a class action
Party seeking review must do so at the court of appeals within 14 days of order
What is the appellate standard of review used for questions of law?
Uses de novo standard - meaning no deference is given to the district judge
Included is when a judge gives a jury instruction that summarizes a question of law
What is the appellate standard of review used for questions of fact in a bench trial?
In non jury trial, when district judge determines questions of fact, court of appeals will affirm unless the findings are clearly erroneous
What is the appellate standard of review used for questions of fact in a jury trial?
Findings of fact by a jury are given great deference
Court of appeals will affirm ulnless rsble people could not have made that finding
What is the appellate standard of review for review of discretionary matters?
Court of appeals will affirm unless the district court judge abused her discretion
Deferential standard
What is the appellate standard of review for review of discretionary matters?
If Case 1 and Case 2 are in different judicial systems, the court in Case 2 applies the preclusion law of the…?
Judicial system that decided case 1
What is the method for answering a preclusion question on the bar?
Start your analyss with claim preclusion
If it applies, case 2 is dismissed
If it does not apply, then try issue preclusion
If issue preclusion applies, it streamlines the litigation in Case 2 by deeming an issue established in the case, and thus that issue will not be relitigated
What are the three requirements for claim preclusion (res judicata) to apply - for a claim to be barred/percluded?
(1) same claimant suing same defendant
(2) valid, final judgment on the merits - unless court said judgment was “without prejudice” when entered, any judgment is “on the merits” unless it was based on a lack of jurisdiction, improper venue, or failure to join an indispensable party
(3) case 1 and case 2 must be the “same claim”
Majority view is that a claim is any right to relief arising from a T/O
Minority view is primary rights doctrine - there are separate claims for property damage and for personal injuries that arise in a single event
A and B, who were each driving his own car, collide and each is injured and each car is damaged. In Case 1, A sues B to recover for personal injuries. A valid final judgment is entered.
In Case 2, B sues A to recover for injuries from the same wreck. Is Case 2 dismissed under claim preclusion?
No. Case 1 and Case 2 were not brought by the same claimant against the same defen- dant, so claim preclusion cannot apply, but remember that Case 2 will be dismissed under the compulsory counterclaim rule.
A and B, who were each driving his own car, collide and each is injured and each car is damaged. In Case 1, A sues B to recover for personal injuries. A valid final judgment is entered.
In Case 3, A sues B for property damage. Is that Case 3 dismissed under claim preclusion?
Under the majority view, yes. It’s the same claimant against the same defendant, and it’s part of the same T/O. But under the primary rights doctrine, the answer would be no. This is the same as the second requirement for claim preclusion.
What are the five requirements for issue preclusion (collateral estoppel) to take effect (and bar issue from being relitigated in a second case)?
(1) case 1 ended in valid, final judgment on the merits = same as claim preclusion
(2) same issue actually litigated and determined in case 1
(3) issue was essential to judgment in case 1 = essential to the judgment means that the finding on the issue is the basis for the judgment
(4) issue preclusion can be used only AGAINST previous party or someone who was in privity w a party = privity means that a party to case 1 represented someone who was not a party to case 1 (like a class action)
(5) need to evaluate whether it can be used by someone who was not a party to case 1 or in privity w a party
Nonmutual defensive issue preclusion: person asserting preclusion to avoid liability was not party to first case and is the D in case 2
Nonmutual offensive issue preclusion: person asserting preclusion to support claim was not party to first case and is the P in case 2 = = not accepted in most states but some accept if it is “fair”
Fairness factors: whether the party to be bound had a full and fair opportunity to litigate in case 1; party to be bound had a strong incentive to litigate case 1; party asserting IP could have easily joined to case 1; and there have been no inconsistent findings on the issue
Roommate, driving your car, is involved in a car collision with Joey. You are vicariously liable for Roommate’s acts. Case 1: Joey sues Roommate. Roommate wins, based on a finding that Joey was negligent and actually caused the wreck. The court enters final judgment for Roommate. Case 2: Joey sues you. Can you assert issue preclusion as to the finding, seeking to impose vicarious liability for Roommate’s collision with Joey?
(1) Did Case 1 end in a valid, final judgment on the merits?
(2) Was the same issue litigated and determined in Case 1?
(3) Was that issue essential to the judgment in Case 1?
(4) Is issue preclusion being asserted against someone who was party to Case 1?
(5) BUT, it is being asserted by someone (you) who was not party to Case 1. Federal law and most states say it’s OK so long as:
(1) yes
(2) yes, determining Joey’s negligence
(3) yes, it is why Roommate won; because Joey was negligent
(4) yes, it’s being asserted against Joey and Joey was a party to claim 1
(5) as long as Joey had a full chance to litigate in case 1, it’s fine
