Civ Pro Flashcards
1
Q
Subject-matter Jurisdiction
A
Federal courts have limited SMJ (power over claims).
Invoked through:
- original filing (federal question, diversity, supplemental jurisdiction)
- removal by defendant
**Cannot be waived and can be raised at any time
2
Q
1331 Jurisdiction - Definition
A
Cases “arising” under Federal law (no jurisdictional amount requirement). In other words, must be created by federal, constitutional, statutory, or treaty law.
3
Q
1331 Jurisdiction - Requirements
A
“Well-pleaded” Complaint: federal issues present on face of complaint and not raised in defendant’s answer or based on what plaintiff anticipate defendant will assert.
4
Q
1332 Jurisdiction - Requirements
A
- complete diversity between parties (each plaintiff from different state than each defendant)
- AIC exceeds $75k
5
Q
Determining Citizenship of Parties
A
Look at Domicile:
A person can only have one domicile. A corporation and non-corporate entity can have multiple domiciles.
6
Q
Domicile Requirements - Person
A
- physical presence in that state
- intent to remain indefinitely (foreseeable future)
A person’s old domicile (where born or, if changed, that place) is presumed to be domicile unless rebut by preponderance of the evidence that requirements met for a new place.
7
Q
Domicile Factors - Person
A
- residence
- registered to vote
- own / rent home
- time in new place
- job
- license / registration
*statements alone insufficient
8
Q
Domicile Requirements - Corporation
A
- state(s) in which incorporated
- state in which PPOB
9
Q
Principal Place of Business
A
Hertz Nerve Center Test:
- where corporation’s high-level officers direct, control, and coordinate the corporation’s activities (usually the headquarters).
10
Q
Domicile Requirements - Non-Corporate Entity
A
Citizenship of members (titles are irrelevant as well as place where organized).
11
Q
Diversity - Noncitizens
A
Diversity exists between U.S. citizen and
(1) citizen of foreign country,
(2) foreign citizen who is lawful permanent resident and domiciled in different state, and
(3) foreign nation
12
Q
Jurisdictional Amount - Requirements
A
Complaint must assert, in good faith, that jurisdictional amount exceeds $75k, excluding interest and costs. ULTIMATE REWARD IRRELEVANT.
Measured at time case is filed.
13
Q
Jurisdictional Amount - Aggregating Claims
A
Claims by multiple plaintiffs or against multiple defendants CANNOT be aggregated UNLESS:
- plaintiffs share a common or undivided interest
- single plaintiff with two or more claims against single defendant OR
- multiple defendants who may be jointly and severally liable
14
Q
Jurisdictional Amount - Class Action
A
At least one representative plaintiff has claim in excess of 75k (plaintiffs with lesser claims can be joined under supplemental jurisdiction doctrine)
15
Q
Waiver of Service - Defendant Lacks Good Cause to Refuse
A
- Defendant must reimburse Plaintiff for costs of service charged by private process server
- Defendant must pay reasonable attorneys’ fees for preparing the motion for costs
- Defendant must reimburse Plaintiff for court costs of filing fee for filing the motion
16
Q
Supplemental Jurisdiction - Requirements
A
exists over supplemental claim if original claim and supplemental claim arose out same transaction or occurrence (common nucleus of operative fact)
17
Q
Supplemental Jurisdiction - Concerns
A
No plaintiff can bring supplemental claim that would destroy complete diversity.
Defendant can bring supplemental claim even if it destroys complete diversity.
Existing plaintiffs who brought diversity claim against defendant cannot later add a non-diverse state claim against new defendants.
18
Q
Factors to Decline Supplemental Jurisdiction
A
Even where requirements met, can decline (discretionary) if:
- novel / complex issue of state law
- supplemental claim “substantially predominates” over original claim
- original claim has been dismissed
19
Q
Dismissal Based on Jurisdictional Amount
A
Defendant must demonstrate clear to a legal certainty that plaintiff cannot be awarded an amount in excess of $75k.
20
Q
Requirements for Removal
A
- plaintiff could have filed claim in federal court
- all defendants join in or consent to removal AND
- defendant removes case within 30 days of receipt of plaintiff’s complaint
21
Q
Dismissal Based on Diversity of Citizenship
A
parties only need to be diverse on day of filing. So, can only dismiss if diversity was incomplete before filing.
22
Q
Removal: Forum Citizen Defect Rule
A
If Defendant relies on 1332 SMJ as basis for removal and ANY defendant is citizen of forum state, presence of D creates a defect that makes removal improper.
23
Q
Removal Concerns
A
- forum-defendant rule
- diversity of citizenship must exist at time of filing AND when defendant files NoR
- court must have SMJ over all claims
- if based on federal question, non-removable claim must be severed and remanded
24
Q
Steps for Removal
A
All parties who have been properly joined and served must join / consent in removal b signing notice of removal or providing written consent.
- D files notice in federal court that encompasses location where state court pending.
- When multiple Ds, each has 30 days to file NoR, starting from date each D received fromal service of state court complaint / summons.
- Ds provided “short and plain statement” of the SMJ that provides grounds for removal, including facts concerning basis for original SMJ
- Ds sign notice and attach copy of all state court process, pleadings, and orders
- Ds file NoR and attachments in federal court and serve on P with memo explaining reasons for removal.
- Ds take NoR, attachments, and copy of memo and file in state court (effectuates removal).
25
Timing of removal
If removable when served, within 30 days of service (based on service of each defendant so earlier-served defendants can consent to removal by later-served defendant).
If originally non-removable but then becomes removable, 30 days from date each defendant received "paper" showing case removable.
26
Bad Faith of Plaintiff Excusing Untimely Removal
- failure to describe seriousness of injuries in complaint
- intentional delay in serving Defendant
- vague answers to interrogatories / damages request
- delaying medical records
- requesting numerous extensions
27
Fraudulent Joinder - Definition
enables a Defendant to remove / remand if demonstrate Plaintiff sued party which they have no means of recovering against for the purpose of obtaining or destroying complete diversity
28
Fraudulent Joinder - Requirements
Defendant must show, after removal, that no reasonable possibility for Plaintiff to recover against the fraudulently joined Defendant.
Reasonable possibility = same standard for MSJ
29
Personal Jurisdiction - Types
- in personam
- in rem
- quasi in rem
30
Caterpillar Rule
Remand not available for defect in 1332 SMJ when:
1. lack of complete diversity existed when NoR filed;
2. federal court did not recognize defect and remand; and
3. lack of complete diversity remedied later so that defect did not exist when trial began.
31
Substantive Defect in Removal: Lack of SMJ
No statutory limit because lack of SMJ can be raised by any party (or the court) at any time.
EXCEPTIONS: Caterpillar rule; fraudulent joinder doctrine
32
Procedural Defect in Removal Procedure: Motion to Remand
If plaintiff believes procedural defect, must file motion to remand within 30 days of date when NoR initially filed. Otherwise WAIVED
33
In Personam Jurisdiction
exists if statutory basis and exercise of jurisdiction meets constitutional requirements of due process
34
Personal Jurisdiction - Definition
power over the person or property
A defendant's express or implied consent (e.g., filing answer without objecting to PJ) operates as waiver.
35
Timing of Removal: 1 Year Past Filing Rule
Cannot remove suit on basis of 1332 jurisdiction after one year from filing date, even if suit does not become removable until later.
EXCEPTION: Plaintiff acted in bad faith to prevent removal.
36
In Personam - Statutory Basis
- defendant falls within any one of criteria set forth in long-arm statute of forum state OR
- state allows exercise of PJ over parties to maximum extent allowed by Constitution
37
In Personam Jurisdiction - Constitutional Requirements
Court can constitutionally exercise general, transient, or specific jurisdiction.
38
General Jurisdiction
contacts with the forum state must be so "continuous" and "systematic" as to render the defendant essentially "at home" in the forum. If constant and pervasive contacts = GPJ; if only casual and isolated = no GPJ.
Paradigm general personal jurisdiction = DOMICILE
39
Transient Jurisdiction
Nonresident individual is PERSONALLY SERVED with process while temporarily and VOLUNTARILY in the forum state
40
Specific Jurisdiction - Requirements
- defendant's in-forum activities or contacts give rise to the cause of action
- defendant has minimum contacts with the forum
- exercise of jurisdiction is supported by the due process standard of reasonableness
41
Specific Jurisdiction - Minimum Contacts (Person)
more than de minimis. Contacts must have been (1) purposefully undertaken by the defendant (2) such that it is foreseeable that the defendant could be sued there.
42
Specific Jurisdiction - Minimum Contacts (Business Entity)
S.C. has not agreed on approach.
Stream of Commerce: defendant purposefully placed product in stream of commerce with expectation that will be purchased by consumers in forum state
Stream of Commerce Plus: in addition to purposefully placing ... defendant took specific action to make that product marketable in the forum state
43
Specific Jurisdiction - Minimum Contacts (E-Commerce)
If product reached forum through e-commerce, three factors to see if purposefully created contact:
- level of interactivity on defendant's website
- extent of "hits" on that website by users located in the forum
- extent of commercial activity conducted by defendant in forum state
44
Specific Jurisdiction - Due Process
Must not violate traditional notions of fair play and substantial justice.
FACTORS:
- plaintiff's interest in having suit heard by chosen forum
- forum's interest in providing forum for dispute
- burden on defendant in having case heard in chosen forum
- interstate judicial system's interest in obtaining the most efficient resolution of disputes and in furthering substantive social policies
45
In Rem
do not impact defendants personally but rather determines rights to specific property.
Court can settle claims from ALL possible claimants involving real or personal property within forum state.
46
Quasi In Rem - Applicable Proceedings
- plaintiff seeking to secure preexisting claim in property (like enforce lien)
- plaintiff seeking to use defendant's property to satisfy judgment
47
Quasi In Rem: Requirements
Defendant has minimum contacts with forum such that fair to make defendant defend action in forum.
48
Service of Process - Requirements
Must comply with statutory and constitutional requirements
49
Service of Process - Statutory Requirements
INDIVIDUAL: made by serving
- Defendant personally
- someone of suitable age and discretion who resides in defendant's dwelling
- defendant's agent authorized by appointment or by law to receive service
CORPORATION: serving officer, managing agent, or agent authorized by appointment or law to receive service
OUTSIDE U.S.: complying with internationally agreed-upon means of service reasonably calculated to give notice
50
Service of Process - Constitutional Requirements
made in a manner reasonably calculated under all circumstances to apprise parties and to afford them opportunity to be heard, with due regard for practicalities of the individual case
51
Waiver of Service
Defendant agrees to waiver + Plaintiff's request was:
- made through written notice
- names court where suit filed
- contains copy of complaint
- informs defendant of consequences of declining request
- gives defendant at least 30 days after request or 60 days if outside US to return waiver
- sent by first-class mail or other reliable means
52
Timely Service
Within 90 days after complaint filed
53
Proper Venue
- RESIDENTIAL: where one defendant resides (if only defendant) or where all reside (if all defendants live in same state)
- EVENT: where substantial part of act / omission giving rise to claim occurred or where substantial part of property that is subject that is subject of action is located; OR
- FALLBACK PROVISION: if NEITHER of the above is met, federal district in which any defendant subject to personal jurisdiction
54
Residential Venue for Alien
Any federal district in the US
55
Remedies for Improper Venue
- motion to dismiss
- transfer to proper venue
**IF DO NOT RAISE IT, WAIVED**
56
Transfer of Venue
Can transfer claim to:
- any other district to which all parties consented OR
- to district where all defendants subject to PJ and venue would lie
57
Transfer of Venue - Choice of Law
if venue was proper pre-transfer, receiving court applies law that transferring court would have applied.
If venue was improper pre-transfer, receiving court makes its own independent COL analysis.
58
Transfer of Venue under Sec. 1404(a) - Proper Venue
For convenience of parties and in interest of justice, federal court can transfer civil action to federal court with proper venue to:
- any federal district where action might have been brought OR
- any federal district to which all parties consented
59
Transfer of Venue under Sec. 1406 - Improper Venue
When venue improper in that federal court:
- federal court can grant motion to dismiss for improper venue;
- if in interest of justice, transfer to any federal district where case could have been brought; or
- if defendants waive, federal court can proceed
60
Transfer of Venue - Forum Non Conveniens
In determining whether to grant a MTD on this ground, FACTORS:
- location of potential witnesses, relevant evidence, and records
- possible undue hardship for defendant
- availability of adequate alternative forums for plaintiff
- choice of law applicable to dispute
- questions of public policy
61
Choice of Law - State v. Federal Claims
If federal claim, no COL problem.
If state claim, COL problem.
62
Choice of Law - Erie Doctrine
When adjudicating state law claims, federal court should apply:
- federal procedural law
- state substantive law if no valid and controlling federal statute, provision of Constitution, or provision of treaty that governs issue.
63
Choice of Law - Substantive v. Procedural
Outcome- Determinative Test:
- analyze whether issue is outcome-determinative (substantially affects outcome) AND
- balance interests underlying state law and conflicting federal practice / custom to determine if it favors application of state law (discourage forum shopping, avoid inequitable administration of laws)
64
Choice of Law - Multiple State Substantive law
Federal court will apply COL state where court located unless transferred from proper venue (COL rules of original state).
if initial venue correct but transferred because of forum selection clause, apply COL rules of state in which it sits
65
Choice of Law - Federal Common Law
if strong federal interest, constitutional limitation on federal judicial authority to create federal common law to adjudicate state law claims does not apply.
Strong federal interest = state law impacts federal party or implicates nation's foreign relations or federal interest in maintaining uniformity when dealing with US currency and commercial paper
66
Pretrial Remedies - Types
- preliminary injunction
- temporary restraining order
67
Preliminary Injunction
Granted if:
- nonmovant received notice
- movant shows likelihood of success on merits
- movant established nonmovant's conduct is likely to cause irreparable harm or render final judgment on merits ineffectual
- balance of equities tips in favor of movant (irreparable harm > inconvenience to nonmovant)
- injunction in public's interest
68
Temporary Restraining Order v. Preliminary Injunction
- TRO can be served without notice (if requirements met)
- TRO can only last 14 day unless court extends time (but can only last for an additional 14 days)
69
Granting TRO Without Notice (What Plaintiff Must Show Court)
- movant offers evidence of immediate, irreparable injury before nonmovant can be notified and a hearing held AND
- attorney certifies in writing the efforts made to notify the nonmovant or why notice should not be required
70
TRO - Requirements for Court
To issue TRO without notice, court must:
- promptly file order
- specify time and date TRO issued
- specify injury and why irreparable
- state why TRO granted without notice
- set hearing date to adjudicate matter upon notice to nonmovant
71
Rule 8 - Definition of "Claims for Relief"
Complaints, cross-claims, counterclaims, and third-party claims
72
Rule 8 - Pleading Requirements
Must contain short and plain statement of:
- court's jurisdictional grounds to hear case
- claims that entitle the pleading party to relief
- specific allegations of facts supporting claims upon which relief can be granted
- demand for relief sought
*Factual allegations must be specific enough to give opposing party FAIR NOTICE of the claims.
73
Rule 9 - Additional Pleading Requirements
Claims for special damages (fraud or mistake, denial that condition precedent occurred or performed) must be stated with particularity (heightened pleading standard).
74
Responsive Pleadings - Requirements
- admit or deny allegations
- state in short and plain terms its defenses to each claim
75
Responsive Pleadings - Denials
Denial: made in good faith. If states lack sufficient knowledge / info = denial. Can:
- make one general denial of all allegations
- one general denial of all except those specifically admitted
- specific denials of designated allegations
IF DO NOT DENY, IT IS DEEMED ADMITTED.
76
Responsive Pleading - Waiver
All Rule 12 defenses (except SMJ, failure to state claim, failure to join necessary party) ARE WAIVED if not raised in first responsive pleading.
WAIVABLE DEFENSES AT THIS STAGE: lack of PJ, improper venue, insufficient service of process / process
77
Responsive Pleading - Timely
- 21 days after service
- 60 days if defendant waived service
-14 days after denial of Rule 12 motion)
78
Amending Pleadings
- once as a matter of right if made within 21 days of service
- by leave of court when justice so requires
- with adversary's written consent
79
Amending Pleadings - Relation Back
Amended pleading relates back to date of original pleading when:
- governing SOL allows it
- asserts claim or defense arising out of events in original pleading OR
- changes party against whom claim made and new party (a) will not be prejudiced in defending case; (b) receiving timely notice of suit; and (c) knew or should have known that suit would be brought against it but for a mistake concerning proper party's identity
80
Consolidation
Where cases involve common question of law or fact, court may join any or all matters at issue, consolidate actions, or issue other orders to avoid unnecessary cost or delay.
81
Separation
court can order a separate trial of one or more separate issues, claims, cross-claims, counterclaims, or 3P claims for convenience, to avoid prejudice, or to expedite and economize.
82
Joinder of Claims
Can join unlimited number of claims against opposing party if:
- compulsory counterclaim, permissive counterclaim, or cross-claim; and
- court has SMJ over claim
83
Counterclaim
Defendant suing plaintiff in same action
84
Compulsory Counterclaim
- arises out of same transaction or occurrence that is subject of opposing party's claim. FAILURE TO ASSERT PRECLUDES ASSERTION IN LATER ACTION UNLESS EXCEPTION
*Court will have SMJ
85
Compulsory Counterclaims - Exceptions to Preclusive Effect
Not precluded from asserting in later action if:
- counterclaim already subject of another pending civil action when plaintiff filed current claim(s)
- PJ over defendant in current action based on attachment of property and defendant has not asserted any counterclaim OR
- counterclaim had not been acquired at time plaintiff filed claim(s)
86
Compulsory Counterclaim - Factors for Same Transaction or Occurrence
- issues of fact and law in claim and counterclaim are essentially the same
- same evidence would support or refute the claim and counterclaim
- claim and counterclaim have a logical relationship OR
- res judicata would bar subsequent suit on counterclaim
87
Permissive counterclaim
do not arise out of same transaction and occurrence and may be joined if court has SMJ
88
Cross-Claim
Party suing co-party. May only be joined if arose of same events that are basis of complaint or counterclaim.
89
Joinder of Parties
Court must have PJ (unless waived).
Types:
- permissive joinder
- compulsory joinder (necessary parties)
- compulsory joinder (indispensable parties)
- interpleader
- intervention as of right
- permissive intervention
- impleader
90
Permissive Joinder of Parties
- claims assert or have been asserted against them arise out of same transaction or occurrence AND
- at least one substantial question of law or fact in common between existing and new claims
91
Compulsory Joinder - Necessary Parties - What It Means
Must be joined if would not destroy complete diversity and is a necessary party
92
Compulsory Joinder - Necessary Parties - Who Is Necessary?
- non-party who absence from the suit will mean complete relief cannot be accorded by court among existing parties OR
- non-party who claims interest relating to action and whose absence may either (a) impair the person's ability to protect the interest or (b) subject existing party to substantial risk of incurring additional or inconsistent liability because of the interest.
93
Compulsory Joinder - Indispensable Parties - What It Means
Court will dismiss ENTIRE proceeding if necessary cannot be joined AND is indispensable.
94
Compulsory Joinder - Indispensable Parties - Factors
Factors to determine if indispensable:
- any judgment issued in person's absence will prejudice him / an existing party
- prejudice could be reduced or avoided (protective provisions in judgment, shaping of relief, other measures)
- judgment rendered in person's absence would be adequate
- plaintiff would have adequate remedy if action dismissed
95
Interpleader
Allows party to avoid multiple liability by requiring all claimants to property or money in that party's possession to join in one civil action
96
Intervention as of Right
outsider has absolute right to join suit if:
- federal statute confers that right OR
- interest in subject matter of suit and adjudicating case in absence might practicably impair ability to protect interest and existing parties cannot adequately represent her interest
97
Permissive Intervention
Court will consider undue delay or prejudice to existing parties.
May intervene if:
- federal statute confers right OR
- claim or defense shares at least one common question of law or fact with existing action
98
Impleader - Definition
Usually existing party filing claim against non-party (indemnity / contribution).
ONLY allowed if connected to existing claims.
99
Impleader - Timeliness
Defendant must bring within 14 days after serving answer.
Plaintiff files third-party complaint by amending original complaint.
100
Class Action - Requirements
- size of class so numerous that joinder impracticable (40+ members)
- questions of law or fact are common to all class members
- claims/defenses of class representatives are typical of those of the other class members
- class representatives are able to fairly and adequately protect the interests of the class AND
- class action falls into one of three categories: (a) separate actions would risk either inconsistent ruling or decisions that dispose of or impair non-parties' interests; (b) opposing party acted in a way common to all class members so that one award of equitable relief is appropriate to entire class; or (c) common questions of law or fact predominate over questions affecting only individual members, and a class action is superior to other available methods of adjudication
101
Class Action - Settlement Requirements
Court will approve proposed CA settlement IF:
- class members received notice of proposed settlement
- settlement is fair and reasonable
- class representatives and their counsel fairly represented the class
- proposed settlement was negotiated at arm's length
- relief provided is adequate
- proposed settlement treats class members equitably relative to one another
102
Discovery - Duty to Preserve Evidence
Arises when party has notice that evidence relevant or when should have known relevant to future litigation
103
Discovery - Spoliation
If had obligation to preserve and evidence was destroyed, court must consider:
- level of culpability of spoliating party
- likely contents of destroyed evidence AND
- degree of prejudice loss of evidence caused the other party
104
Discovery - Scope
Any info that is relevant to claims or defenses and proportional to needs of cases is discoverable UNLESS:
- privileged (must expressly withhold on this ground and describe nature of it so other party can assess claim)
- presumptive limit exists and parties have not agreed otherwise or court has not ordered otherwise
105
Discovery - Presumptive Limitations
Interrogatories:
- 25 max, including sub-parts. Must obtain leave of court or receive stipulation of other party to ask more.
- Other party must answer within 30 days of service (objections must be specific)
Depositions:
-10 max without leave of court. Must provide reasonable notice. No single deposition can last more than one day of seven hours.
Requests for Admission:
- No limitation
106
Discovery - Proportional
Factors:
- Importance of issues
- AIC
- parties' relative access to relevant info
- parties' resources
- importance of discovery in resolving issues
- whether burden or expenses of proposed discovery outweighs likely benefit
107
Discovery - Requests for Production
Requirements:
- documents described with reasonable particularity
- discoverable because non-privileged matter relevant to any party's claim or defense and proportional to needs of the case
- within party's possession, custody, or control
**Party has duty to make a reasonable search of all sources likely to contain requested information.
108
Discovery - Mandatory Disclosures
Must be made NO MORE THAN 14 DAYS AFTER 26(f) Conference (or whatever deadline court sets):
- witness names, contact info, and subject of discoverable info
- documents and tangibles that party possesses or controls that will be used to support claims or defenses
- computation of damages claimed and materials on which computation based
- insurance agreement under which insurer may be liable
109
Discovery - Failure to Provide Mandatory Disclosures
Prohibited from using at trial except for impeachment
UNLESS non-disclosure was either substantially justified or harmless
110
Discovery -Expert Testimony Disclosures
Must be made AT LEAST 90 DAYS BEFORE TRIAL. If only rebuttal testimony, 30 days after adverse party's disclosure of expert's identity and report.
Must disclose:
- identity of expert
- subject matter expert will testify about
- summary of facts and opinions to which expert expected to testify
- if expert retained specifically to give testimony at trial, must provide the written and signed report
111
Discovery - E-Discovery
If request ESI, must:
- organize or label it corresponding to categories in discovery request AND
- produce it in form requested unless party objects. If no form specified, produce in form ordinarily maintained or in reasonably usable form.
112
Discovery - E-Discovery Spoliation
If spoliated while under duty to preserve, court may:
- order measures necessary to cure prejudice to opposing party OR
- if party acted with intent to deprive, presume lost info was unfavorable to party who lost it and instruct jury of that, dismiss action, or enter default judgment.
113
Continuing Duty to Respond
If discover initial production incomplete, must produce
114
Rule 26(f) Conference
Between the parties.
Parties cannot seek discovery until this conference occurs.
115
Motion to Compel
must include certification that conferred or attempted to confer in good faith with adverse party to resolve dispute
116
Motion for Protective Order
may file if requested discovery is:
- outside scope of mandatory disclosures
- subject to privilege
- abuse of discovery process
117
Discovery Sanctions
- treat as contempt of court
- treat matters in discovery order as established
- prohibit disobedient party from supporting or opposing claims/defenses or introducing designated matters into evidence
- strike pleadings in whole or in part
- issue default judgment against disobedient party
118
Sanctions for Pretrial / Scheduling Conferences
Where fail to appear, substantially unprepared to participate, or does not participate in good faith.
Available sanctions:
- treat as contempt of court
- treat matters in discovery order as established
- prohibit disobedient party from supporting or opposing claims/defenses or introducing designated matters into evidence
- strike pleadings in whole or in part
- issue default judgment against disobedient party
119
Pretrial Conference
expedites resolution of case, set schedules to avoid delay, discourage wasteful activities, improve trial prep, facilitate settlement
120
Pretrial Orders
issued at end of pretrial conference. Sets forth: decisions, admissions / stipulations of facts, evidentiary rulings, timing for SJM or submitting briefs or future conferences, discovery schedules, identifications of witnesses and documents, and details of any settlements
121
Scheduling Order
Limit time to join other parties, amend pleadings, complete discovery, and file motions.
need good cause to modify SO (proof that acted diligently to try to meet original deadlines).
122
Rule 11 Requirements
At least one attorney of record or unrepresented party must sign every filing to certify that to best of knowledge, information, and belief and after reasonable inquiry that:
- pleading not intended for improper purpose
- pleading not frivolous
- facts supported by evidence or likely to have support after further investigation; and
- any denials of facts are warranted by evidence or based on belief or lack of info
123
Rule 11 - Reasonable Inquiry
totality of circumstances at time submitted pleading.
Factors:
- how much time signor had for investigation
- whether had to rely on client for information
- whether law in pleading plausible
- whether signor had to depend on info from another attorney
124
Rule 11 Motion for Sanctions - Procedure
Prior to filing, movant must give notice to opposing party who has 21 days to cure or withdraw deficient pleading.
Sanctions can be initiated by court or upon motion of party.
125
Rule 11 Violation - Available Sanctions
monetary or nonmonetary sanctions that court deems necessary to deter repetition.
Can impose monetary sanctions on party who represents themselves or when party authorizes attorney to pursue claim that it knew or should have known was both legally and factually baseless.
126
Other Types of Sanctions
can be sanctioned for failing to:
- disclose or supplement response
- make admission
- attend deposition, serve answers to interrogatories, or respond to requests for inspection
Violations - what is deemed necessary to deter conduct (disallow use of that witness or info, order payment of reasonable expenses, inform jury of party's failure).
127
Pretrial Motions and Judgments - Types
- motion for more definite statement
- motion to strike
- motion to dismiss
- motion for judgment on the pleadings
- motion for summary judgment
128
Motion for More Definite Statement
- defendant can file before filing responsive pleading
- must show complaint is vague and ambiguous that defendant cannot reasonably prepare response
If granted, Plaintiff has 14 days to amend complaint.
129
Motion to Strike
- any party can file before responding to the pleading at issue or within 21 days after being served with pleading
- must show pleading insufficient (does not provide fair notice) or includes redundant, immaterial, impertinent, or scandalous material
130
Motion to Dismiss - Must Be Filed Before or Contemporaneously With Answer
- lack of PJ
- improper venue
- insufficient process (the documents)
- insufficient service of process (way served)
**Failure to timely assert = waiver.
131
Motion to Dismiss - Must Be Filed Before or During Trial
- failure to state a claim upon which relief can be granted
- failure to join a necessary party
132
Motion to Dismiss - Failure to State a Claim (12(b)(6))
Defendant must show:
- complaint's factual allegations do not make it plausible to infer that defendant is liable (dismissed without prejudice so plaintiff can cure)
- claim pleading is not cognizable as a matter of law (dismissed with prejudice)
133
Motion to Dismiss - Must Be Filed Before, During, or After Trial
MTD based on lack of SMJ
134
Motion to Dismiss - Evidence
Cannot consider testimony. Judge may only look at pleadings and must accept non-movant's allegations as true.
If matters outside pleading are presented to court, judge will convert the motion to a Rule 56 MSJ.
135
Motion for Judgment on the Pleadings
- can file once all pleadings submitted
- should not include evidence outside pleadings
136
Motion for Summary Judgment - Standard
movant must demonstrate no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law
Evidence viewed in light most favorable to non-movant
137
Motion for Summary Judgment - Timeliness
Must be filed within 30 days of the close of discovery
138
Motion for Summary Judgment - Procedure
- look at affidavits / testimony supplied by each side
- cannot assess credibility of witnesses or weigh evidence
- construe facts in light most favorable to non-movant
139
Motion for Summary Judgment - Affidavit Requirements
- based on affiant's personal knowledge
- set forth facts admissible in evidence
- affiant competent to testify on matter
140
Default Judgment - When Applies
Entered if:
- party fails to make an appearance and
- showing that party against whom judgment is sought was properly served and has failed to respond to it
141
Default Judgment - Entry of Default Judgment by Court Clerk
Court clerk MUST enter d.j. if:
- claim is for a sum certain or a sum that can be made certain by computation
- responding party has not made an appearance in the case
- party seeking d.j. submitted affidavit showing amount due AND
- party who defaulted is not a minor or incompetent person
142
Default Judgment - Entry of Default Judgment by Trial Judge
- must apply to trial judge for all other cases in which entry of default (not sum certain or sum that could be made certain or involves minor / incompetent person)
MAY enter if:
- party seeking d.j. has applied for it
- party against whom default sought is a minor / incompetent and representative for that party has appeared; and
- if party against whom d.j. sought has appeared, that party (or its representative) must have been served with written notice of application for d.j. or at least 7 days before hearing
143
Default Judgment - Hearings
Court may hold hearing as necessary to:
- conduct accounting
- determine damages
- establish truth of allegations
- investigate any other matter
144
Default Judgment - Set Aside
Motion must be made within reasonable time.
Can set aside entry of default upon showing by defendant of good cause for failure to timely defend
Can set aside default judgment for:
- mistake or excusable neglect
- newly discovered evidence that could not have been discovered in time to move for new trial
- fraud or misconduct by opposing party
- void, satisfied, released, or discharged judgment
- any other reason that justifies relief
145
Voluntary Dismissal
Initiated by plaintiff and permitted once without court approval if MTD filed before defendant files answer or MSJ. Afterwards, need court approval unless parties stipulate. Granting is within court's discretion.
Made without prejudice unless expressly stated otherwise. Plaintiff can refile. If does so, may be ordered to pay defendants' costs of first action.
If voluntarily dismiss a second time, deemed adjudication on the merits.
146
Involuntary Dismissal
Court can dismiss based on plaintiff's failure to prosecute, plaintiff's failure to comply with FRCP or court order, or defendant's MTD under Rule 12.
Presumed to be with prejudice unless order says otherwise.
147
Motion for Judgment as a Matter of Law
Any party can file before submission to jury.
Standard: No reasonable jury would have legally sufficient basis to find for opposing party on issue or claim in question.
148
Renewed Motion for Judgment as Matter of Law
Any party can file within 28 days of entry of judgment.
Standard: no reasonable jury would have legally sufficient basis to find for opposing party on issue or claim in question.
149
Motion for New Trial
Any party can file within 28 days after entry of judgment.
Court can, on motion or sua sponte, grant new trial for following reasons:
- mistake by judge (evidentiary ruling error)
- misconduct by party, witness, attorney
- misconduct by jurors
- verdict against clear weight of evidence
- excessive verdict
- inadequate verdict
- newly discovered evidence that was not discoverable through reasonable efforts before end of trial.
NEW TRIAL WILL NOT BE GRANTED IF ALLEGED ERROR DID NOT AFFECT OUTCOME OF CASE.
150
Motion for New Trial: Additur, Remittur
Remittur: court can offer plaintiff opportunity to accept reduced award in lieu of new trial
Additur: court cannot offer defendant opportunity to accept increased award in lieu of new trial because violates right to jury trial
151
Other Post-Trial Motions
- motion for relief from judgment or order due to clerical mistake
- motion for relief from judgment or order due to substantive error
- motion to alter or amend judgment
- motion for attorney's fees
152
Jury Trials - Right to Jury Trial
- AIC exceeds $20
- either claim existed in common law in 1791, claim is for damages and is analogous to historical common law cause of action, or federal statute provides right to jury trial of claim, and
- right to jury trial has not been waived or withdrawn
153
Jury Trials - Peremptory Challenges
- limited to three for each party. Multiple parties on each side must share unless court allows them to be separate.
Cannot dismiss juror in basis of race or gender. If opposing attorney believes that has happened, can object. Challenged party will need to provide neutral reason for it (but reason does not have to be logical).
154
Jury Trials - For Cause Challenges
Unlimited. Examples of cause = juror has knowledge of facts of case or there is existence of bias
155
Jury Trials - Jury Composition
Must have at least six but no more than 12.
Each empaneled juror must participate in deliberations and in issuing verdict unless excused for good cause.
156
Jury Trials - Jury Instructions
Before instructing jury, judge must inform parties of proposed instructions and give each party opportunity to object on the record outside of the jury's presence.
If fail to object, lose right to raise error on please unless plain error that affects party's substantial rights.
157
Jury Trials - Jury Verdict
Must be unanimous and returned by at least six jurors (unless parties stipulated otherwise).
Court must poll upon request of parties (after verdict but before discharge). Can order new trial or require further deliberations if not unanimous.
158
Jury Trials - Types of Verdicts
General - who won and recovery. No reasons provided.
Specific - expands issue preclusion because jury must issue finding on each factual issue by responding to interrogatories. *If jury ordered to render special verdict, party must demand any issue of fact raised by pleadings / evidence be submitted to jury before deliberations or deemed to waive right to jury trial on any issue for which demand not made.
General Verdict with Answers to Written Questions:
- consistent: issue judgment upon verdict
- inconsistent (with each other and at least one inconsistent with general verdict): require jury to further consider answers or order new trial
- consistent answers but inconsistent with verdict: issue judgment consistent with written answers, require jury to continue to deliberate, or order new trial
159
Bench Trial
Court must make and state findings of fact and conclusions of law.
- must do this for preliminary injunctions but not MSJ or MTD
- upon motion no later than 28 days after judgment, can amend findings or make additional findings and, if necessary, amend judgment
- on appeal, cannot set aside factual findings unless clearly erroneous while giving due regard to witness credibility determinations
160
Appeal - Requirements
Generally available only from final judgment
161
Appeal - Final Judgment
All disputed issues have been fully adjudicated by trial court
162
Appeal - Interlocutory Appeal
Can only appeal interlocutory orders where:
- preliminary injunction
- order in receivership, admiralty, or patent case
- controlling question of law certified for interlocutory appeal by district court
- partial judgment certified for interlocutory appeal by district court
- order denying petition to compel arbitration
163
Collateral Order Doctrine
Defendant can seek immediate appeal of order that:
- conclusively determines a disputed question
- resolves an important issue (i.e. immunity) that is separate from the merits
- resolves an issue that is effectively unreviewable later
164
Appeal - Standard of Review
Discretionary rulings: not erroneous unless plain error
Issue of law: reviewed de novo (no deference)
Issues of fact: if bench trial, clearly erroneous; if jury trial, cannot reexamine factual findings unless complete absence of proof on material issue
Appellate court will not reverse erroneous legal ruling if no substantial chance the erroneous ruling made difference to outcome of case.
165
Claim Preclusion (Res Judicata)
- claim litigated in prior lawsuit between same parties (actual parties or individuals in privity with named party)
- claim in prior lawsuit adjudicated on the merits AND
- new claim is on same claim litigated in prior lawsuit or claim that arose from same event or transactions.
Default judgment = adjudication on merits (if court had PJ and SMJ).
166
Issue Preclusion (Collateral Estoppel)
- issue identical to issue that was litigated in prior action
- issue was actually disputed and litigated in prior action
- issue was unambiguously decided
- issue was essential to judgment in prior action and
- party against whom collateral estoppel is being used was a losing party (or one in privity with that party) who had an opportunity and incentive to litigate the issue in the prior action
167
Issue Preclusion - Actually Litigated
if parties stipulated to truth of fact or addressed in default / consent judgment, not subject to issue preclusion
168
Issue Preclusion - Offensive Nonmutual Issue Preclusion
allows plaintiff in second action was nonparty to first action to invoke issue preclusion on issue adjudicated in its favor in first action. Allowed if:
- plaintiff could not have been joined in first lawsuit AND
- doing so is not unfair to defendant
169
Jury Trial Demand - FRCP 38 [double check]
- Plaintiff must serve defendant with written demand no later than 14 days from when last pleading directed to issue is served (i.e., answer)
- Must file demand with federal court within reasonable time
