Civil Pro Flashcards
The landowner planned to build a parking lot; she contracted with builder & permit to the city.
City denied.
She sued the CITY + Director of Building dpt (individual).
City: unconstitutional taking.
Builder: Intentional Interference of Contract.
FRCP 20 (a ) (1) allows person to join as plaintiffs if
They assert any right jointly, severally, or alternatively arising from the same transaction or occurrence.
If the case presents
any (share the same) question of law or fact common to all defendants.
Assume the director asserts the counterclaim for defamation against the landowner.
Allowed.
Compulsory counterclaim
arises from the same transaction or occurrence as the plaintiff’s claim.
Permissive counterclaim
does not arise from the same transaction or occurrence as the plaintiff’s claim.
- May be brought as a counterclaim or as an independent claim in another case.
Compulsory Counterclaim
may not be brought in another case if not raised in the original case.
Here, defamation claim arose from the same events as the landowner’s claim
Director must plead the defamation claim as a compulsory counterclaim or risk losing it.
The landowner sued the city alone for taking + plaintiff 2: the builder wants to intervene.
Intervention:
- matter of right
- matter of permissive.
Right to intervene
The party claims an interest in the underlying property or transaction.
+ Resolving the case without the intervenor might impair that party’s ability to protect its own interests.
No right to intervene
An existing party adequately represents the intervenor’s interests.
Landowner cannot adequately represent the builder’s interest
The builder has no a right to intervene. It is not clear without intervention, the builder has impaired ability to protect his interest.
Nonparty: the builder wouldn’t have been bound by the result of the landowner’s case.
A court may allow permissive intervention if the intervenor’s claim or defense shares a common question of law or fact with the existing case.
Intelligent Cats Love Fish,
ICLF.
Intervention. Common, Law, Fact.
Impleader
A defendant may bring a 3rd party into a lawsuit for indemnity or contribution in case the defendant is found liable to the plaintiff.
Assume that the city asks the insurance to defend against the landowners claim,
The insurance says, “sorry.”
The city could have impleaded the insurer
As a 3rd party defendant to indemnify the city in case the city is liable.
Impleader
- may be used only for indemnity or contribution
- may not be used to shift primary liability to a 3rd party.
The city couldn’t implead the county to try to establish their direct liability
Derivative liability만 가능.
FRCP 19
A person whose joinder won’t defeat jurisdiction is required to be joined if:
JOINER: The court can’t provide a complete relief without her OR
JOINDER: She claims an interest that might be compromised without her participation.
Failure to join can be a ground for dismissal.
Here, the builder’s absence would not have impaired the builder’s own interests.
+ nor, the builder’s absence would not have prevented the landowner from obtaining full relief.
Therefore, the builder wasn’t a required party.
If a required party can’t be joined:
Should the court dismiss the case or allow it to be proceed?
Compulsory joinder:
1- Is there potential prejudice to any party?
2- Would a judgment be adequate without the missing party?
3- Whether the plaintiff would have an adequate remedy if the court dismissed the case?
Class action
a case in which one or more representatives litigate on behalf of a group of plaintiffs.
FRCP 23 (a) to allow class action,
the Court must certify cases or a class action based on the following factors.: 1. Numerous, 2. Plaintiff’s claim must present common questions of law or fact. 3. Representitives’ claims must be typical of class claims, 4. The representative must be capable of fairly and adequately representing the class.
The case must be one of the several types of suitable for class treatment under R 23 (b).
-Common issues of law or fact predominate over individual issues.
- Class resolution is superior to individual cases.
Diversity based class actions
The federal courts have jurisdiction over most class actions with at least 100 class members if:
- the sum of the member’s claim exceeds $5 million &
- there is minimal diversity (one class member has diverse citizenship with the one defendant).
- Exception: PJ if at least 2/3 of the class members, plus at least one defendant reside in the state where the case was filed.
Scheduling order
(Goat: Mandatoryinitial scheduling conferences)
Issued by court as soon as practicable after either
Receiving the parties’ discovery planning report
or holding a scheduling conference with the parties’ lawyers.
Scheduling order must be issued no later than;
60 days after any defendant has appeared or 90 days after any defendant has been served.
The scheduling order must limit the time to:
-join other parties;
-amend the pleadings,
-finish discovery
-file motions.
Scheduling order may
address anything else for efficient case management; such as
- privilege issues;
-pretrial conference dates
-a trial date.
9 months later; both says, “we need more time for discovery.”
The parties cannot both agree to extend the deadline. NO.
It is scheduling order.
Schedule may be modified only for
Good cause and with the court’s consent.
Both has to ask the judge for modification.
Pretrial conference (Goat: Initial Pretrial conferences 1) can address:
discovery, settlement, evidentiary stipulations,
Pretrial conference (Goat: Initial Pretrial conferences 1) can address:
Parties discuss disclosure and settlement 21 days prior to the scheduling conference in court.
Order issued by the court after any pretrial conferences; summarizing outcomes;
governs the case from then on unless the court modifies it.
Court
may require parties to attend, or to be reasonably available, to discuss settlement. (Settlement Conferences: Goat완전 다른 것 . Ct encourages)
Court may impose sanctions against the party or attorney who
-Doesn’t appear when required;
-Is unprepared for a conference;
-Fails to participate in good faith.
FRCP 16 (f)
The court may sanction any party or attorney who disobeys a scheduling order or other pretrial order.
Final pretrial conference
(Goat: Final Pretrial Order)
must be held as close to trial date as is reasonable;
at least one lawyer for each party; plus any unrepresented party; must attend.
If issued, it may be modified only to prevent manifest injustice.
Rule 11
a lawyer or unrepresented party must sign any motions, or pleadings.
Anyone who signs, files, submits, or advocates
certifies that based on reasonable inquiry;
The paper isn’t presented for an improper purpose;
the paper’s contents have a legal or evidentiary basis or are likely to after reasonable discovery.
FRCP 11 Reasonable inquiry required is measured objectively
Subjective good faith is no excuse for failing to make reasonable inquiry.
Lawyer may rely on facially valid document
unless unreasonable, or appropriate reasonable investigation?
Complaint
The competitor filed to sabotage the battery manufacturing facility.
- Assume, the manu knew this allegation was false. It was just to intimidate the competitor. The manu’s lawyer was a part of the scheme.
By signing the complaint, the lawyer certified that she made a reasonable inquiry that the complaint had no improper purpose. + 2. By signing, the lawyer had an evidentiary support for their sabotage. –> ALL FALSE.
Both purpose and content of sabotage allegation
violated R 11.
FRCP 11
The court can raise for their own; or the party can move for sanctions.
Safe Harbor Provision
Before filing motion, aggrieved party must give 21days to correct violation.
Safe harbor provision
If the opponent makes correction, the aggrieved party may not file the motion.
A court may sanction lawyers or parties who violate R 11.
A lawyer and their lawfirms are jointly responsible; absent exceptional circumstances.
Sanctions
limited to whatever is necessary to deter future violations by the offenders and by others.
Sanctions 11
- Monetary penalties;
- Limitations on trial evidence,
- Dismissal.
- Remedial civil pro class.
Discovery plan (26 f)
all parties have to have to discuss the claim, settlement, and anticipated discovery issue.
The parties then must submit the discovery plan to the court
the subjects and timing of the discovery.
FRCP 26 a. requires
make standard initial disclosures either or within 14 days after initial planning conference and without awaiting request from another party;
- Witness, documents, and relevant insurance policies.
Discovery
- Neither party may request from the other before initial planning conference.
- May serve requests for documents once 21 days have elapsed since party was served.
After R 26 f conference:
each party may deploy
1. Interrogatories,
2. Depositions,
3. Requests for documents,
4. Requests for admissions from other parties.
5. Subpoena the 3rd parties.
6. Each party required to disclose expert witnesses.
Rule 33 Interrogatories
Written questions from one party that another party must answer under oath within 30 days. 25. Unless parties agree or court orders.
- May ask about facts and about a party’s opinions or contentions.
Scope of discovery
Assume “Can he produce copies of his tax returns for the past 5 years?”
A party may obtain about any nonprivileged matter that’s
- Relevant to any party’s claim or defense, OR
- Proportional to the needs of the case.
Relevant information
discoverable even if it’s not admissible at trial.
Proportionality
the discovery can’t be excessive or overly burdensome.
Work product doctrine
protects trial preparation materials from discovery.
FRCP 26 (b) (3)
A party may not discover any documents prepared in anticipation of litigation or for trial by or for another party or its representatives.
Work product: each party should do its own trial preparation.
not piggybag another party’s work.
NOT Protected work product
engineer prepared report in normal course of quality control process, not in anticipation of litigation on for trial. –> discoverable.
Protected work product
Engineer instructed to prepare report because manufacturer learned about accident and expected the lawsuit.
Report is non discoverable.
Exception of work product (Hicksman)
- It has substantial need for the information.
- It can’t obtain equivalent information without undue hardship.
Expert witness discovery
Expert might testify:
1. Party must disclose expert’s identity and produce report detailing background and opinions.
2. Other parties may take expert’s deposition.
Expert as nontestifying consultant.
- No such report is required.
- Other parties may not discover facts known to or opinions held by expert.
As a limited exception,
a party may obtain such discovery;
1. If it is impracticable for the party to obtain facts or opinions, on the same subject some other way.
FRCP 26 c. Protective orders
the court may order protective orders to
protect a party from discovery that’s unduly burdensome, unreasonably cumulative, excessively expensive, harassing or embarrassing.
Jury trial (7th)
if the amount in controversy exceeds $20.
It may also confirmed by the statute.
FRCP 38
Expressly preserves both constitutional and statutory jury trial rights in federal cases.
Jury trial right
applies to legal issues ($), not equitable issues (injunction)
If it is not clear whether it is legal or equitable,
Cts consider the remedy sought;
look for analogous causes of action in common law.
Combination legal and equitable issues
- The court first tries the legal issues to the jury.
- The judge ALONE tries the equitable issues (bound by the jury’s conclusion and findings of fact).
Parks act: Student “I demand $500 K in damages”
right to jury trial.
Student, “Plus injunction forbidding similar construction methods.”
No jury trial right.
Judge here, Parks Act:
- First, Try the damages issue to the jury.
- Second, rely on the jury’s factual findings to try the equitable issue without a jury.
FRCP 38 (b)
A party may demand a jury trial by filing and serving a written jury demand within 14 days after service of the last pleading directed to the issue.
Last means,
final allowable PLEADING (not motion).
Demand:
in pleading or separate document.
The court must honor it.
If the party fails to demand a jury trial
The court may try the case without a jury.
If the party later moves for jury trial;
The court may order a jury trial on any issue for which a proper demand could have been made.
If the defendant did not file an answer; there was no final pleading regarding the claim
The student clock has not started to run on 14 day deadline for jury demand. So the student demand was timely.
FRCP 48
requires jury to begin with at least 6 and no more than 12 jurors.
Judge may excuse jurors for cause.
The verdict must be unanimous and must be rendered by at least 6 members.
The verdict from 5 jurors
improper.
Voir dire
questioning potential jurors to determine whether each juror can be impartial
Peremptory challenges
-3 for each party.
- used to strike potential juror without explanation
- can’t be sued to discriminate against potential jurors based on race or sex.
Challenge for cause
judge must decide whether the challenged juror can be impartial.
- Potential juror owns stock in a corp party
- juror or the juror’s spouse previously worked for a party XXXXXXX
FRCP 51 (c)
requires party to object to jury instruction or refusal to instruct when party first learns of court’s proposed instruction or refusal.
- any … untimely objections are waived.
The party can appeal the jury instruction without first raising it at trial
if the court committed a plain error that affects substantial rights.
Ordinarily
failure to object jury instruction would waive any further challenge to the instruction.
Here, jury instruction to punitive damage:
plain error. It directly contradicted applicable statute and affected substantial rights.
Improperly awarded the large $$$ damages that student was not entitled.
The contractor is entitled to challenge the jury instruction on appeal. despite failure to object.
The student says, “I seek to introduce some of the contractor’s internal emails into evidence.”
The court says, “no.”
It is not final judgment. The litigation did not end. The student could not appeal.
Exceptions: Interlocutory appeals.
28 USC 1292
Orders granting or denying injunctions are immediately appealable.
Final judgment
ends the litigation on the merits and leaves nothing for the trial court to do but to execute the judgment.
28 USC 1292 (b) Assume, the company moved for summary judgment:
The company argues the statute Park Act allows suits against park officials but not contractors. The court denies the motion.
Parks Act: ambiguous as to whether contractors could be sued.
Other federal courts: split on this question.
28 USC 1292 B
Company could have asked the trial court to certify this queseiton for an immediate interlocutory appeal.
The trial court must certify in writing that:
- The order involves a controlling question of law.
(whether contractor can be sued or not at all). - There is substantial ground for difference of opinion,
(other courts have reached the different conclusions). - An immediate appeal may materially advance the end of the litigation.
(if the appellate court rules that the defendant was NOT a proper defendant.)
If the trial court certifies the question then,
the Contractor can immediately appeal.
+
The appellate court has discretion whether to accept or reject the appeal.
Certification process (R 1292 b)
reserved for truly unsettled legal issues.
-it doesn’t apply to other issues.
-it doesn’t apply to questions of fact.
FRCP 54 (b)
partial final judgment applies if a court
1. Resolves fewer than all claims in multi claim case.
2. If the court resolves claims as to fewer than all parties.
Partial final judgment
Ct can dismiss the federal law claim without ruling on a state law claim.
Partial final judgment (resolutions)
don’t end the litigation.
If no just reason to delay, Ct may enter a partial final judgment only as to the resolve claims or the relevant parties.
Entering partial final judgment
factors to consider:
- 1. the policy disfavoring multiple appeals.
-2. any prejudice resulting from a delayed appeal.
3- the relationship between the resolved claims and those remaining.
Courts are most likely to enter Partial final judgment
if the claims underlying the judgment are legally or factually distinct from the remaining claims.
Case tried without a jury
The judge must make separate findings of fact and conclusions of law….. In writing or orally.
The judge may ask the aprties to submit the proposed findings and conclusions.
Preserving objections for appeal
A party typically must make those objections on the record in the trial court.
- A party may challenge the sufficiency of the evidence to support a judge’s factual findings even if the party did not object to them.
Setting aside the trial judge’s findings:
An appellate court may not set aside the trial judge’s findings unless they were clearly erroneous.
- The appellate court has a definite and firm conviction that the trial judge made a mistake.
-Must due regard to trial judge’s opportunity to evaluate witness credibility.
SoL Appellate Review: Issues of law
-De novo:
An appellate court may assess those issues for itself without deference to the trial court.
Issues of fact decided by a judge
reviewed under the clearly erroneous standard.
Issues of fact decided by jury
reviewed under a substantial evidence standard.
- the Appellate court will overturn the jury’s findings only if no reasonable jury could have found as the jury did.
Matters within the trial judge’s discretion
Evidentiary ruling:
- overturned only for abuse of discretion
Claim Preclusion
prohibits relitigating claims that were decided or could have been decided in a prior case.
Claim precluded if:
- The prior case ended in final, valid judgment on the merits.
- The parties in the prior case and the current case are identical or in privity with the another.
- The same cause of action.
Claim preclusion: the same cause of action:
1 The claims arise from the same transaction or occurrence;
2 The claims were raised or could have been raised in a single case.
Claim splitting
occurs if a plaintiff divides related claims among multiple lawsuits.
Claim preclusion
Suing the CEO the same as suing the company because of privity. Still, the 2nd case will be precluded.
Issue preclusion prohibits relitigating the issue if:
- The issue is identical to an issue in the prior case.
- The prior case ended in a valid final judgment.
- The issue was litigated and necessarily decided in the prior case.
- The current opposing party had a full and fair opportunity to litigate the issue in the prior case.
Full and fair opportunity to litigate
Issue preclusion can’t be used against someone who wasn’t a party to the prior, preclusive case.
Here, the second litigation has no company as a party:
It would have violated due process to bind the company by the result in the defamation case.
Issue preclusion would not apply.
Issue preclusion can’t be used against someone who wasn’t a party to the allegedly preclusive case.
Mutuality
The parties in both the case at hand and the prior, preclusive case must be identical.
Most courts require mutuality (the same parties) for issue preclusion.
Today, FED cts and state courts no longer require mutuality.
28 USC 1738
Federal Courts must give full faith and credit to state court judgments.
- Federal court must give a state court judgment the same preclusive effect that the issuing state would give that judgment.
-Both to claim preclusion and issue preclusion.
What matters: the effect in the issuing state:
not the effect a similar judgment would have if issued by a federal court or by a different state’s court.
The dismissal was issued by the State A court:
The dismissal had preclusive effect in State A.
The federal court had to get the judgment the same effect.
Salesman claim: precluded.
FRCP 41: The first dismissal in Fed Ct:
The 2nd dismissal in Fed Ct:
Operated as an adjudication on the merits.
The 3rd in State Court XXXXXXXXXXXXXXXXXXX
(Semtek Intl Inc.)
The preclusive effect of a dismissal in a federal diversity case is governed by federal common law
not by state law.
The State B court should have looked the federal common law to decide whether the federal dismissal preclude the State B case.
Federal Subject Matter Jurisdiction
- Federal Question
- Diversity.
EG Federal Question:
“I am suing the trucking company under the Chemical Safety Act.”
28 USC 1331
Federal Courts have jurisdiction over all cases arising under the Constitution, laws, or treaties of the U.S.
Federal question generally must appear on the face of the plaintiff’s complaint.
-Well pleaded complaint rule.
When the customer sues company on a state law negligence claim and
- Company defendant can’t be negligent because complied with the federal act:
This won’t trigger federal question jurisdiction.
Diversity jurisdiction
“I am seeking $100,000 on a state law tort claim.”
- Driver is in NY
- Trucking company in Delaware.
Diversity jurisdiction
$75,000 exceeds,
complete diversity of citizenship between plaintiffs and defendants side of case.
Citizenship: individual
citizen of state where domiciled, principal home with intent to remain indefinitely.
Corporation
Citizen both of the state where it’s incorporated AND the state where it has its principal place of business.
If the plaintiff, Florida citizen joins,
No diversity. because Trucking company is in Florida.
Diversity jurisdiction
extends to suits between a foreign citizen and a citizen of the US State.
