Civil Procedure

Question 1

What two types of cases can federal courts hear?

Answer 1

Federal question cases

Diversity cases (amount in controversy must exceed $75k)

Question 2

Diversity Jurisdiction

Answer 2

2 key elements:

• Complete Diversity - EACH plaintiff must be a citizen of a different state than EVERY defendant
• Amount in controversy must >$75k

Question 3

When is diversity in a case determined?

Answer 3

At the time the lawsuit is filed

Question 4

How can we come up with the 75k amount in controversy?

Answer 4

Can aggregate claims. These claims may be unrelated. (check second part of this)

Where they are suing multiple defendants, can only aggregate if defendants are jointly liable

Question 5

Federal Question Basics

Answer 5

“Arising under” the Constitution, laws, or treaties of the United States

Existence of a federal question must appeal in complaint* as part of plaintiff’s* well-pleaded cause of action. (existence of a defense based on federal law will not create federal question jurisdiction)

Question 6

What is supplemental jurisdiction

Answer 6

Where a plaintiff has both federal question and state law claims – the court has discretion to exercise “supplemental jurisdiction” over state law claim if:

• The “supplemental” claim arises from a common nucleus of operative fact as the federal question claim
• The claims ordinarily would be tried in one proceeding

Question 7

Personal Jurisdiction Basics

Answer 7

Personal jurisdiction must be:

-Statutorily authorized

~Presence at the time of proper service
~Domicile
~Consent
~Where the state’s long arm statute provides basis for jurisdiction

-Constitutional

~Contacts (sufficient minimum contacts between defendant and forum state such that jurisdiction is fair and reasonable; see future notecards)
~relatedness
~Fairness

Question 8

“Contacts” for personal jurisdiction

Answer 8

“There must be sufficient minimum contacts between defendant and forum state such that jurisdiction is fair and reasonable”

• purposeful availment
• foreseeability

Question 9

“Relatedness” for personal jurisdiction

Answer 9

Specific Jurisdiction - Current cause of action only -> long arm statute

Plaintiff’s claim must be related to defendant’s contacts with the forum state

General jurisdiction - All causes of action -> domicile or “at home”

Question 10

“Fairness” for personal jurisdiction

Answer 10

Must not offend “traditional notions of fair play and substantial justice”

Question 11

Erie Doctrine

Answer 11

only applies to diversity cases

-A federal court will apply federal PROCEDURAL law and state SUBSTANTIVE law

3 tests to determine which law applies

• Outcome determinative: does it substantially affect outcome?
• Balance of interest test: doest state have greater interest?
• Forum shopping deterrence: increase litigation in federal court?

Question 12

Areas that are deemed substantive for the Erie Doctrine

Answer 12

• statutes of limitation
• Rules for tolling statutes
• Choice of law rules
• Elements of claim or defense

Question 13

Test for impleader

Answer 13

Defendant may implied TPD ONLY IF TPD is or may be liable for all or part of D’s liability to P

Question 14

What is a default

Answer 14

Entry of default - notation in the case file by the clerk that answer was not timely filed

General rule - defendant properly served must respond with motion to dismiss or by filing an answer within 21 days of service

Entry of default and default judgement are two different things.

• Clerk may enter default when:
  1) The amount in dispute is for a sum certain
  2) Defendant has NOT appeared

An appearance means any formal appearance or any action by the defendant indicating that he intends to contest the merits.

If defendant appears, notice must be given of a hearing for default judgment. Defendant needs a notice of at least 7 days before this hearing.

Question 15

When is a counterclaim compulsory?

Answer 15

When it arises out of the same transaction or occurrence. Otherwise, it’s permissive.

Question 16

service of process generally

Answer 16

Rule 4 allows for: (i) personal service, (ii) service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein, or (iii) service upon an authorized agent of the defendant.

Alternatively, service may be made as provided by the rules of the state in which the federal court sits or the state in which service is to be effected, regardless of the basis of subject matter jurisdiction.

does not provide general authority to serve process on a third party found at a defendant’s place of employment, instead permitting service only upon an agent authorized by appointment or by law to receive service of process on behalf of the defendant.

Question 17

Personal Jurisdiction: BASIC IDEA

Answer 17

Personal jurisdiction (“PJ”) is about the court’s power over: The parties

Because P filed the case, the court automatically has power over P. The big Q is PJ over D. PJ involves one question: can P sue D in this state?

• TWO-STEP ANALYSIS
  Whether there is PJ is a two-step analysis:
  • Satisfy a state statute AND
  • Satisfy the Constitution (Due Process).

Generally, this analysis is the same in federal and state court. So whether a federal court in State X has PJ over D is assessed exactly the same way as whether a state court in State X would have PJ. No difference.

Question 18

Personal Jurisdiction: APPLYING THE ANALYSIS

Answer 18

Statutory Step: Each state is free to have its own statutes for in personam jurisdiction. The content of such a statute is not testable on the MBE. In most states, the statute reaches the full extent of the Constitution, so the statutory grant is the same as the constitutional test (which we do next). On the UBE/MEE, just mention that you need a state statute and move to the constitutional analysis.

*Constitutional Analysis: Does D have “such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice”?

To determine whether this is met, we assess a set of factors under these headings: CONTACT—RELATEDNESS—FAIRNESS

(1) Contact:
There must be a relevant contact between D and the forum state. There are two factors to be addressed here.
• (a) Purposeful Availment. The contact must result from purposeful availment: D’s voluntary act. This means: D must reach out to the forum

EXAMPLES
(1) Marketing a product in the forum; (2) using the roads in the forum; (3) establishing domicile in the forum; (4) traveling in the forum; (5) sending a tortious e-mail into the forum.

Can D purposefully avail without setting foot in the forum? -> Yes, by causing an effect in the forum

(b) Foreseeability: It must be foreseeable that: D could get sued in the forum

(2) Relatedness:
Between this contact and P’s claim. Once we arguably have a contact between D and the forum, ask: Does P’s claim arise from D’s contact with forum?

If the answer is yes, the court might uphold PJ even if D does not have much contact with the forum (de- pending on whether PJ would be fair). Where the claim arises from D’s contact with the forum, it is called: *specific PJ

What if the claim does not arise from D’s contact with the forum? Then, jurisdiction is OK ONLY IF the court has *general PJ. If so, D can be sued there for a claim that arose anywhere in the world.

To have general PJ, what must be true? D must be: at home in the forum

Where is a human always “at home”? -> where domiciled

EXAMPLE
D is domiciled in VA. Can D be sued in VA on a claim that arose in Antarctica? Yes. D is “at home” in VA and can be sued there for a claim that arose anywhere in the world.
Suppose D is domiciled in State A, but is voluntarily present in State B when she is served with process for a suit filed in State B. Does this “tag jurisdiction” make D subject to general PJ in State B (even though she is not “at home” in State B)? -> yes

*Historically, a corporation was subject to general PJ in every state in which it did continuous and systematic business. That is no longer true. The company’s activity must be so systematic and continuous that the company is “at home” in the forum. Where is a corporation always “at home”? -> where incorporated and where it has principal place of business (PPB)

(3) Fairness:
Now we assess whether jurisdiction would be fair (or reasonable) under the circumstances.
However, the fairness factors are addressed only in what kind of cases? -> specific PJ only

So fairness factors are not assessed if there is gen- eral PJ–once we find D is “at home” in the forum, that’s the end of it.
In specific PJ case, how do we determine if PJ is fair?
• (a) Burden on D and witnesses. Does due process guarantee that the suit will be in the most convenient forum for D? -> no

So even if it’s hard for D to travel to the forum and to get her witnesses to the forum, the forum is constitutionally OK unless D can show that it puts her at a severe disadvantage in the litigation. This is a very difficult burden to meet because the relative wealth of the parties is not determinative.

• (b) State’s interest. The forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters.
• (c) Plaintiff’s interest. Maybe injured and wants to sue at home.

Question 19

Personal Jurisdiction: SUMMARY OF THE CONSTITUTIONAL TEST*

Answer 19

1. Contact: Purposeful Availment and Foreseeability
2. Relatedness: General v. Specific
3. Fairness (Specific Only): Burden/Convenience,
   State’s Interest, and Plaintiff’s Interest

There is no clear right answer here; the key is to assess each one of the factors and come to a rea- sonable conclusion. Be mechanical.

Question 20

Notice/Service of Process: BASIC IDEA

Answer 20

In addition to PJ, D is entitled to notice that she has been sued. As a constitutional matter, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action.”
In a regular lawsuit, notice consists of two documents:
(1) a summons (formal court notice of suit and time for response); and
(2) a copy of the complaint.
Together, these two documents are called: process

How do you get the summons? -> present it to the clerk of court for signature and seal

Question 21

Notice/Service of Process: WHO CAN SERVE PROCESS?

Answer 21

Any nonparty who is at least 18 years old.

Must the process server be appointed by a court? -> No

Question 22

Notice/Service of Process: WHEN?

Answer 22

If D is to be served in the U.S., service is to take place within how long? -> No more than 90 days after filing the complaint.

Question 23

Notice/Service of Process: HOW IS PROCESS SERVED?

Answer 23

• ON AN INDIVIDUAL IN THE UNITED STATES:
  a. Personal Service. Papers are given to D personally. Where? -> anywhere
  b. Substituted service. Process is left with D’s butler at D’s summer home. OK if: 1) its D’s usual abode and 2) Serve someone of suitable age and discretion who resides there.

Must D reside there every day of the year for it to qualify as his “usual abode”? -> No, it’s where they are living at that time.

Must the person on whom service is made be related to D? -> No

c. Service on D’s agent. Process can be delivered to D’s agent. OK if receiving service is in scope of agency, e.g., appointment by K.

In federal court, can we use substituted or agent service even if personal service would be possible? -> Yes, there is not preference

d. State law methods. In addition, we can use methods for serving process that are permitted by state law of the state (1) where the federal court sits or (2) where service is made.

What is a good example of how state law might apply? -> service of process by mail. Not generally permitted federally but could be permitted state law.

• ON A BUSINESS OR ORGANIZATION IN THE UNITED STATES:
  • Officer, managing or general agent. Deliver a copy of the summons and of the complaint to such a person.
  • State law methods. Can use methods for serving process permitted by state law of the state (1) where the federal court sits or (2) where service is made.
• ON A MINOR OR INCOMPETENT PERSON IN THE UNITED STATES:
  • Use any method permitted by: state law
  • Of what state? -> state where service is to be made
• SERVICE IN A FOREIGN COUNTRY
  May use a method allowed by international agreement (e.g., Hague Convention). Or, if there’s no such agreement on point, options:
  • As directed by the American court;
  • If reasonably calculated to give notice:
  • Method allowed by the foreign country’s law
  • Method directed by foreign official in response to a letter of request (letter rogatory) from the American court
  • Personal service in the foreign country (unless prohibited by its law) or
  • **Mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by the foreign country’s law).

Question 24

Notice/Service of Process: WAIVER OF FORMAL SERVICE OF PROCESS

Answer 24

Mail to D a notice and request to waive formal service, including a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (e.g., stamped envelope for sending it back to P). If D executes and mails waiver form to P within 30 days (60 days if D is outside the U.S.), D waives formal service of process. Can be used for individuals and entities.

If D waives formal service of process, does D waive any defense like lack of PJ? -> No

When D signs and mails the waiver form back to P, what does P do? -> files it in court. Effective date is the date it is filed

That means that for timing purposes, we act as though D was served with process on the day P filed the waiver form in court.

Suppose D fails to return the waiver form. P then has D served personally or by substituted service. If D did not have good cause for failing to return the waiver form, is there a penalty for D? -> Yes, he must pay the cost of service

Question 25

Notice/Service of Process: PROVING SERVICE OF PROCESS

Answer 25

Unless service is waived, the process server files a report with the court detailing how service was made.

If the server was a civilian, the report is by affidavit (sworn statement, under oath).

If the process server fails to file this report, does that affect the validity of service? -> No

Question 26

Notice/Service of Process: GEOGRAPHIC REACH OF SERVICE

Answer 26

Process may be served within the state in which the federal court sits. It may be served outside that state if state law allows. That is why the assessment of whether we have PJ is the same for federal court as it is for state court.

Question 27

Notice/Service of Process: IMMUNITY

Answer 27

D is present in State X to appear as a party, witness, or attorney in a different civil case in State X. Can D be served with process for a civil case in federal court in State X? -> No, she is immune from service of process

Question 28

Notice/Service of Process: SERVICE OF OTHER DOCUMENTS

Answer 28

Other documents (e.g., answer, other pleadings, motions, discovery) get served, but we don’t need
a summons or to do it so formally. We serve these documents by delivering or mailing the document to the party’s attorney (or pro se party – a pro se party is one without a lawyer).

Can you serve these documents by email? -> Yes, if the party agrees

Suppose we mail discovery requests to the other party. Service is deemed complete when they are mailed.

The other party has 30 days in which to respond to the requests. Does she get extra time to respond because the requests were mailed? -> Yes, an extra 3 days

Question 29

SUBJECT MATTER JURISDICTION—“SMJ”: BASIC IDEA

Answer 29

SMJ is about the court’s power over the case (not over the parties). Federal courts can only hear certain kinds of cases. What about state courts? As a general rule, they can hear any kind of case. They have “general” SMJ.

Are there cases state courts cannot hear? Cases under a few federal laws must be brought in federal court–e.g., patent infringement, bankruptcy, some fed- eral securities and antitrust claims. Most cases arising under federal law can be heard by state courts.

Federal courts have “limited” SMJ. What are the two main types of cases that can be heard in federal court? -> 1) Diversity of citizenship and 2) Federal question

BTW, diversity of citizenship includes “alienage” jurisdiction.

REMEMBER: parties cannot consent to SMJ

Question 30

SUBJECT MATTER JURISDICTION—“SMJ”: DIVERSITY OF CITIZENSHIP (AND
ALIENAGE) CASES

Answer 30

There are two requirements for diversity of citizenship cases:

• The case is either (a) between citizens of different U.S. states (diversity) or (b) between a citizen of a U.S. state and a citizen of a foreign country (alienage) and
• The amount in controversy exceeds $75,000.
• First Requirement: Who Are the Right Kinds of Litigants for a Diversity (or Alienage) Case?~Complete Diversity Rule
  No good if any P is a citizen of the same state as any D.

There is a special rule that prohibits alienage if a green card alien is domiciled in the same U.S. State as a litigant on the other side of the case.

1. Citizenship of a Natural Person (Human)
   For a human, who is a U.S. citizen, what is the U.S. state of her citizenship? -> it is the US state of her domicile

Is there such a thing as a human without a domicile? -> No

So everyone has a domicile, and you retain it until you change it.
Can a person have more than one domicile at a time?-> No

So a human can be a citizen of only one state at a time.
How do you establish a new domicile? It takes two things: 1) Presence in the new place 2) Intent to make it your home for the foreseeable future

For intent, courts look to all relevant factors—like taking a job, buying a house, joining civic organizations, registering to vote, qualifying for in-state tuition.

We test for diversity when the case is filed.

2. Citizenship of a Corporation
   What is/are the citizenship(s) of a corporation? -> Every US state or country where incorporated AND the on US state or country of its PPB

Though a corporation can be incorporated in more than one place, it is incredibly rare. Usually, there is one place of incorporation.
Where is the corporation’s PPB? A corporation can only have one PPB. It is where managers: direct, coordinate, and control the corporate activities

It is usually the site of the corporate headquarters.

3. Citizenship of an Unincorporated Association (Partnership, Limited Liability Company (LLC), Etc.)
   What is its citizenship? -> the citizenship of all its members

If it’s a limited partnership, do you include the citizenships of the general and the limited partners? -> Yes

4. Citizenship of Decedents, Minors, or Incompetents
   Such persons must sue or be sued through a representative. However, the representative’s citizenship is irrelevant. Use the citizenship of the decedent, minor, or incompetent.

• Second Requirement: Amount in Controversy

In addition to complete diversity or alienage, P’s claim must EXCEED $75,000.

Whatever the P claims in good faith is OK unless it is clear to a legal certainty that it won’t exceed $75k

Aggregation*
Aggregation means adding two or more claims to meet the amount requirement. We aggregate claims of any one P against any one D
Can we aggregate factually unrelated claims? -> Yes
Is there any limit on the number of claims that can be aggregated by one P against one D? -> No

For joint claims -> Use the total value of the claim.
With joint claims, the number of parties is irrelevant.

Equitable Relief
P sues D for an injunction to tear down part of his house that blocks P’s view. Two tests; if either is met, most courts say it’s OK:
• Plaintiff’s viewpoint: Does the blocked view decrease the value of plaintiff’s property by more than $75,000?
• Defendant’s viewpoint: Would it cost defendant more than $75,000 to comply with the injunction?

Exclusions
Even if the requirements for a diversity or alienage case are met, federal courts decline to hear some cases.
What kinds of cases will federal courts not hear (“excluded” cases)? -> divorce, alimony, child custody, and to probate an estate.

Question 31

SUBJECT MATTER JURISDICTION—“SMJ”: FEDERAL QUESTION (“FQ”) CASES

Answer 31

The claim in P’s complaint “arises under” federal law (e.g., federal constitution, legislation).

1. Is citizenship of the parties relevant? -> No
2. Is the amount in controversy relevant? -> No
3. “Well pleaded complaint” rule. It is not enough that some federal issue is raised by the complaint. The P’s claim itself must “arise under” federal law. So we look at the claim and ignore other material P alleged. Ask: IS P ENFORCING A FEDERAL RIGHT?

• If the answer is yes, the case can go to federal court under FQ jurisdiction.
• If the answer is no, the case cannot go to federal court under FQ.

Question 32

SUBJECT MATTER JURISDICTION—“SMJ”: REMOVAL JURISDICTION

Answer 32

P has sued D in state court. D would prefer to litigate in federal court. D might be able to “remove” the case to federal court. Removal transfers the case from a state trial court to a federal trial court. If removal was improper, the federal court can “remand” the case back to state court.

1. When can D remove?
   D must remove no later than 30 days of service (not filing) of the first paper that shows the case is removable. Usually, that means no later than 30 days of service of process.
2. Who must join in the removal?
   All defendants who have been served with process. They need not all join in the same document; they can file separate notices of removal—just so all of them remove in a timely fashion. The 30 day window starts from the latest date a defendant was served.

Black letter rule: Plaintiffs can never, never, never remove. Even if D files a counterclaim against P, so P is a defendant on the counterclaim, P can never, never, never remove.

3. What cases can be removed?
   Starting point always: D can remove a case that meets the requirements for diversity of citizenship or FQ.
   There are two big exceptions to this but these exceptions apply only if we are removing on the basis of diversity of citizenship jurisdiction.
   So even though the case meets the requirements for a diversity case, we cannot remove if either of these two exceptions applies:
   • No removal if any D is a citizen of the forum (in-state D rule) or
   • No removal more than one year after the case was filed in state court.

One-year exception. A diversity case with an in-state D can become removable.
It becomes removable if P voluntarily dismisses the claim against D-2. But watch the dates.
Suppose P dismissed the claim against D-2 six months after the case was filed in state court. D-1 may remove within 30 days of service of the dismissal, BUT…
Instead, say P voluntarily dismissed the claim against D-2 a year and a day after P had filed the case in state court. The in-state D is now gone and there is diversi- ty. But can D-1 remove? -> Yes but it should be remanded because it is a diversity case and it was removed more than 1 year after case was filed in state court
(Unless D-1 shows that P acted in bad faith by originally joining D-2 to prevent removal.)

4. To what federal court does D remove?
   D removes to the federal district “embracing” the state court where the case was filed.
5. How Do Ds Remove a Case?
   P sues D in state court. D wants to remove to federal court. Must she get permission from the federal or state courts? -> No
   D files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ).
   D attaches all documents that were served on her in state action. She “promptly” serves a copy of the “notice of removal” on adverse parties. Then she files a copy of the “notice of removal” in state court.
6. Remand to State Court
   If P thinks the case should not have been removed, she moves to remand to state court.
   If P thinks removal was improper for some reason other than lack of SMJ (e.g., D did not attach relevant papers to her notice of removal), she must move to remand no later than: -> 30 days after notice of removal was filed in federal court

If she does not, she waives the right to have the case remanded to state court; in other words, the case will stay in federal court.
If P thinks removal was improper because the federal court lacks SMJ, when can she move to remand to state court? -> anytime, no time limit

Question 33

Subject Matter Jurisdiction – Supplemental Jurisdiction: BASIC IDEA

Answer 33

Supplemental jurisdiction is a form of federal SMJ.
But it is fundamentally different from diversity and FQ.

Diversity and FQ get cases into federal court. Supplemental jurisdiction does not. Instead, it gets claims into a federal case even though the claims do not invoke diversity of citizenship or FQ.

Question 34

Subject Matter Jurisdiction – Supplemental Jurisdiction: STARTING POINT

Answer 34

We must have a case that is already in federal court. So the case invoked diversity or FQ and is pending in federal court.

Question 35

Subject Matter Jurisdiction – Supplemental Jurisdiction: NOW FOCUS ON ADDITIONAL
CLAIMS

Answer 35

In any case in federal court, additional claims might be asserted in that case; e.g., maybe P has additional claims, or maybe there’s a counterclaim or crossclaim, etc.

Must the federal court have SMJ over every single claim in the case? -> Yes

So each claim must have federal subject matter jurisdiction. If it does not, it cannot be asserted in the pending case in federal court. That means that each additional claim is tested to see if it invokes: Diversity of citizenship or FQ

If an additional claim satisfies either diversity of citizenship or FQ, it can be heard in the federal court case. But what if the additional claim does NOT satisfy diversity of citizenship or FQ? The federal court can still hear the claim if it invokes: -> supplemental jurisdiction

So supplemental jurisdiction gets claims into a federal court case, even though the claims do not meet diversity of citizenship and do not meet FQ.

Question 36

Subject Matter Jurisdiction – Supplemental Jurisdiction: HOW DOES SUPPLEMENTAL
JURISDICTION WORK?

Answer 36

The case is properly in federal court. Now we have a claim in that case that does not, by itself, invoke diversity or FQ. We want to get that claim into the pending case through supplemental jurisdiction. Think of two steps:

1. The Test
   The claim we want to get into federal court must share a “common nucleus of operative fact” with the claim that invoked federal SMJ (the claim that got the case into federal court).
   When is “the test” always met? When a claim arises from the same transaction or occurrence as the underlying case.
2. The Limitation
   BUT by statute certain claims cannot invoke supplemental jurisdiction even though they meet “the test.”
   The limitation applies only in what kinds of cases? -> diversity cases
   The limitation: In a diversity case, claims by plaintiffs cannot invoke supplemental jurisdiction.
   But there is an exception to this limitation: When there are multiple plaintiffs, and the claim by one of them does not meet the amount in controversy requirement. Here it is: -> when there are multiple P’s and the claim by one of them does not meet the amount in controversy requirement.

Any other time P has an additional claim in a diversity case, it will not invoke supplemental jurisdiction. So
it must satisfy diversity of citizenship or FQ. It cannot invoke supplemental jurisdiction.

SUMMARY OF SUPPLEMENTAL JURISDICTION:

So a non-federal, non-diversity claim can be heard in federal court if it meets “the test” UNLESS it is:

a. Asserted by a plaintiff
b. In a diversity of citizenship (not FQ) case AND
c. It’s not like Hypo 5D.

Question 37

Subject Matter Jurisdiction – Supplemental Jurisdiction: DISCRETIONARY FACTORS

Answer 37

Even if we meet the requirements for supplemental jurisdiction, the court has discretion to decline it. It can do so if the state law claim is complex or state law issues would predominate in the case. But the more likely one is this: It can decline supplemental jurisdiction if the federal claim was dismissed early in the case

Question 38

Law Applied In Federal Court: THE ERIE DOCTRINE

Answer 38

The Erie Doctrine

Approach an Erie question in this order:

• STEP 1. Ask: is there some federal law (like federal constitution or statute or FRCP or Federal Rule of Evidence) on point that directly conflicts with state law? If so, apply the federal law, as long as it is valid. What is this based on? -> supremacy clause

Let’s say a FRCP is on-point and conflicts with state law. We know it governs as long as it is valid. How do we know if a FRCP is valid? The FRCP are presumptively valid and are OK if they are “arguably procedural.” None has ever been held invalid.

STEP 2. If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.” Five issues are clearly “substantive”:

(1) Elements of a claim or defense, *(2) Statute of limitations, (3) Rules for tolling statutes of limitations, (4) Conflict (or choice) of law rules, and
(5) Standard for whether to grant a new trial because a jury’s damages determination is excessive or inadequate.

So on these five issues, the federal court does what in a diversity case? -> It must apply state law

• STEP 3. If there is no federal law on point and the issue is not one of the five just listed, the federal judge must determine whether the issue is “substantive.” The law is very unclear, consisting of some factors that no one knows how to weigh:

a. Outcome determinative: Would applying or ignoring the state rule affect outcome of case? If so, it’s probably a substantive rule, so should use state law.
b. Balance of interests: Does either federal or state system have strong interest in having its rule applied?
c. Avoid forum shopping: If the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, should probably apply state law.

Question 39

Law Applied In Federal Court: FEDERAL COMMON LAW (“FCL”)

Answer 39

Erie means there is no GENERAL federal common law (FCL). So the general common law of torts, contracts, and property is STATE law, and federal courts must apply that state substantive law in a diversity case. But there are areas in which federal courts are free to make up common law on their own.

Examples: international relations, admiralty, disputes between states, the right to sue a federal officer for violating one’s federal rights. In these areas, there is no role for state law.

One important area of FCL is: -> the preclusive effect of a federal judgment.

Question 40

Venue, Transfer, And Forum Non Conveniens: BASIC IDEA

Answer 40

Subject matter jurisdiction told us we can take a case to federal court. Venue tells us exactly which federal court. The country is divided into federal districts. P is suing in federal court and wants to lay venue in a proper district.

Question 41

Venue, Transfer, And Forum Non Conveniens: BASIC CHOICES

Answer 41

P may lay venue in any district where:
• All defendants reside (special rule below in Hypo 7B) or
• A substantial part of the claim arose.

Note: The provisions above do NOT apply if the case was REMOVED from state to federal court. There, venue is in the federal district embracing the state court where the action was filed. These rules are for cases initially filed in federal court.

Can a substantial part of a claim arise in more than one district? -> Yes

So a substantial part of a tort claim might arise where the defective product was manufactured and where P was injured. A substantial part of a K claim might arise where the K was entered and where it was to be performed.
For venue, does it matter where P resides? -> No

For venue, does it matter whether it’s a diversity case or a FQ case? -> No

If D does not reside in the U.S., venue is OK: -> in any district

But if another defendant does reside in the U.S., venue must be proper as to her in accordance with the rules above.

Question 42

Venue, Transfer, And Forum Non Conveniens: WHERE DO DEFENDANTS “RESIDE” FOR VENUE PURPOSES

Answer 42

1. Where does a human “reside”? In the district where domiciled
2. Where does a business (corporation or unincorporated) reside? In all districts where subject to PJ for this case

Question 43

Venue, Transfer, And Forum Non Conveniens: TRANSFER OF VENUE

Answer 43

Transfer goes from one trial court in a judicial system to another trial court in the same judicial system. So a federal district court may transfer the case to another federal district court. Terminology: The original court is the “transferor,” and the one to which the case is sent is the “transferee.”

BUT the transferee must be a proper venue and have PJ over the defendant—and generally those must be true without waiver by D.

Exception: Under transfer statute #1 (below), the court can transfer to any district (even an improper venue) if all parties consent and the court finds cause for the transfer. It is unlikely that P will consent to this, so it’s not clear this happens much.

• Transfer Statutes
  There are two transfer statutes.

~~Statute #1: If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and in the interest of justice.

Because transfer overrides P’s choice of forum (and because P chose a proper venue), the burden is on the person seeking transfer (usually D). What factors does the court look to in deciding whether to transfer the case? -> Public and private factors showing that the transferee is the center of gravity

Public: Things like what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court.

Private: Convenience. For example, where evidence and witnesses are

The existence of a valid forum selection clause prescribing venue in the other federal district establishes that the private factors support transfer.

P files a diversity case in N.D. Ga., which is a proper venue. The court orders transfer to W.D. Pa. After transfer, what choice-of-law rules does W.D. Pa. apply to the case? GA choice of law rules . The transferee applies the choice of law rules of the transferor unless: -> transfer is to enforce a forum selection clause

A forum-selection clause (“FSC”) is a provision in which the parties agree that a dispute between them will be litigated in a particular place.

If one party sues the other in violation of a FSC, the D may seek to enforce the FSC through a motion to transfer (assuming the forum selection clause called for litigation in a proper federal district).

Federal law enforces FSCs (if they’re not unreason- able). Some states do not. In federal court, federal law governs transfer. So a federal court may enforce a FSC even though a state court in that state would not.

~~Statute #2: If the original district is an improper venue, what may that court do? It may transfer in the interest of justice or dismiss

Usually the court will transfer if possible. When it does, the transferee applies the choice-of-law rules of the state in which it sits (in a diversity case), and NOT the choice-of-law rules of the transferor district.

Question 44

Venue, Transfer, And Forum Non Conveniens: FORUM NON CONVENIENS

Answer 44

Like transfer, there is another court that is the center of gravity, that makes more sense than the present court. But here, the court does not transfer to the more convenient court. What does it do? -> dismisses or stays the case

To stay means hold in abeyance; nothing happens
in the case. It just sits there. Whether it dismisses or stays, the idea is that P will then sue in the other court.

Why does the court dismiss or stay? Because the more convenient court is in a different judicial system (e.g., a foreign country), so transfer is impossible!

The decision is based on the same public and private factors as transfer above, including the existence of a valid forum selection clause.

The other court must be available and “adequate.” Suppose the center-of-gravity court, which is in a foreign country, does not permit jury trials, recovery for pain and suffering, or other remedies. Does that make the foreign court inadequate? -> No, it is ok unless P can get no remedy

Question 45

Pleadings: COMPLAINT

Answer 45

Filing this commences an action.

• Requirements
  The complaint must contain:
  • A statement of grounds of subject matter jurisdiction;
  • A short and plain statement of the claim, showing
  entitled to relief;
  • A demand for relief sought (e.g., damages, injunction, declaratory judgment)

Must P allege grounds of PJ or venue? -> No

In stating the claim, federal courts traditionally used “notice pleading,” which means you only need enough detail to put the other side on notice. Now, though, the Supreme Court requires more detail (Twombly and Iqbal).

What is the standard? -> Must plead facts supporting a plausible claim

To determine plausibility, the judge uses her own experience and common sense.

D can challenge the complaint by making a Rule 12(b)(6) motion.

• Particularity
  What three matters must be pleaded with even more detail—with particularity or specificity? -> Fraud, mistake, special damages.

Question 46

Pleadings: DEFENDANT’S RESPONSE

Answer 46

Rule 12 requires D to respond in one of two ways:
(1) By motion or
(2) by answer.
To avoid default, D must do one of these two things no later than 21 days after being served with process.
If D waived service, D has 60 days from when P mailed the waiver form.
______

1. MOTIONS (Rule 12)
   Motions are not pleadings; they are requests for a court order.
   Issues of form:
   • 12(e) motion for more definite statement—the complaint is so vague or ambiguous D simply cannot respond; must make this motion before answering;
   • 12(f) motion to strike—asks the court to remove redundant or immaterial things from pleadings; any party may move for this.
   ***Rule 12(b) defenses:
   • (1) lack of subject matter jurisdiction (SMJ);
   • (2) lack of PJ;
   • (3) improper venue;
   • (4) improper process (problem with the papers);
   • (5) improper service of process;
   • (6) failure to state a claim;
   • (7) failure to join indispensable party.
   These defenses can be put either in a motion to dismiss or in the answer.
   Which of these are “waivable”? -> 2, 3, 4, 5.

“WAIVABLE” DEFENSES MUST BE PUT IN THE FIRST RULE 12 RESPONSE (MOTION OR ANSWER) OR ELSE THEY’RE WAIVED.
How late can D raise a failure to state a claim (Rule 12(b)(6)) or a failure to join an “indispensable” party (Rule 12(b)(7))? -> anytime through trial

Is there any time limit for raising lack of SMJ? -> No

So whenever the court determines that it has no SMJ, it must dismiss (or, if the case had been removed from state court, must remand to state court).
Suppose D makes a motion to dismiss under Rule 12 and it is denied. What must D do? -> serve answer within 14 days of notice of denial

2. THE ANSWER
   It is a pleading. D does two things in the answer:

a. Respond to allegations of complaint:
• (1) Admit;
• (2) Deny;
• (3) State that you lack sufficient information to admit or deny.
Number (3) has the effect of a denial, but you cannot use (3) if the answer to the question is in your control.

Example: If P alleges something and D knows that the answer is in D’s records, D must look it up. She cannot say that she does not know.
In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D alleges “P has no proof that I was intoxicated.” Did D make a mistake? -> Yes, he admitted he was intoxicated.
Failure to deny constitutes an admission except as to damages.

b. Raise affirmative defenses.
These inject a new fact into the case, which will allow D to win. Classic affirmative defenses are statute of limitations, Statute of Frauds, res judicata, self-defense. All Rule 12(b) defenses are also affirmative defenses.
If D fails to assert an affirmative defense in the answer, what might happen? -> she may be deemed to have waived it

If D asserts an affirmative defense, must P respond to the answer? NO. The allegations in D’s answer are deemed denied.

Question 47

Pleadings: AMENDED PLEADINGS—FOUR FACT PATTERNS

Answer 47

• 1. Right to Amend:
     • Plaintiff has a right to amend her complaint once no later than 21 days after defendant serves first rule 12 response.
     • Defendant has a right to amend her answer once no later than 21 days of serving her answer.

D’s first response was an answer, in which she forgot to raise “waivable defenses” and forgot to raise an affirmative defense.
If she has a right to amend her answer, can she now assert the “waivable defenses” and affirmative defense? -> Yes, right to amend saves waivable defenses

• 2. If There Is No Right to Amend:
     Must seek leave of court. It will be granted if “justice so requires.” What factors do courts look to in ruling on this? -> Delay, prejudice, futility of amendment
• 3. Variance:
     That’s where the evidence AT TRIAL does not match what was pleaded.
• 4. Amendment after the Statute of Limitations Has Run (“Relation Back”)

a. To join a claim not originally asserted
P files his complaint and has process served on July 1. The statute of limitations runs on July 10. In August, P seeks leave to amend to add a claim. Is that claim barred because the statute ran? -> It is not barred if the amendment relates back

Rule: Amended pleadings “relate back” if they concern 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 statute of limitations problem.

b. To change a defendant after the statute has run
The amendment will relate back if:
• The amendment concerns the same conduct, transaction, or occurrence as the original;
• The new defendant knew of this case within 90 days of filing;
• She also knew or should have known that, but for a mistake, she would have been named originally.
This applies when P sued the wrong D first, but the right D knew about it.

Question 48

Pleadings: SUPPLEMENTAL PLEADINGS

Answer 48

These set forth things that happened AFTER the pleading was filed.

Is there ever a right to file a supplemental pleading? -> No

You must make a motion; whether it should be granted is in the discretion of the court.

• 8.5 RULE 11
  Rule 11 applies to all documents except discovery (which are treated by a different rule).
  When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry
  • The paper is not for an improper purpose, and
  • The legal contentions are warranted by law (or nonfrivolous argument for law change), and
  • The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).
  In addition, you make this certification every time you “present” a position to the court (e.g., when you later advocate a position taken in the document). It is a “continuing certification.”

If there is a violation (e.g., assertion of a baseless claim), against whom may Rule 11 sanctions be ordered? -> The party, attorney, or firm responsible

(General rule: Law firm is jointly responsible with its attorney who violates Rule 11.)
Before imposing a sanction on you, the court must give you a chance to be heard.
What is the purpose of Rule 11 sanctions? -> deter (not punish)

Often, courts impose non-monetary sanctions (e.g., require lawyer to attend professionalism classes). Monetary sanctions, if imposed, are often paid to court, not to the other party.
If the other party violates Rule 11, can you file a motion for sanctions immediately? -> No

You serve the motion on other parties but cannot file it. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed.
Can the court raise Rule 11 problems on its own (“sua sponte”)? -> Yes, and there is no safe harbor in this situation

To do so, the court usually issues an “order to show cause” (“OSC”) why sanctions should not be imposed. The court must give a chance to be heard before imposing a sanction on anyone.

Question 49

Joinder: BASIC IDEA

Answer 49

Joinder rules define the scope of the case—how many parties and claims can be joined in one case? Remember: every single claim in federal court must have SMJ.

Question 50

Joinder: CLAIM JOINDER BY PLAINTIFF

Answer 50

This is easy. Plaintiff (in fact, anyone asserting a claim) may join any additional claim she likes—even if the additional claim is unrelated to the original claim.

EXAMPLE
P sues D for (1) breach of contract, (2) an unrelated tort, (3) an unrelated violation of consumer protection stat- utes, and (4) for cheating at poker. This is OK.

Now, with all these claims, we assess whether the case invokes SMJ.

Question 51

Joinder: PROPER PLAINTIFFS AND DEFENDANTS

Answer 51

Many cases are brought by one P against one D. Here, P is planning the case and wants to have multiple Ps or multiple Ds.
Three people are injured when the taxi in which they are riding crashes. May they sue together as co-plaintiffs? Yes, because their claims: -> (1) arise from the same T/O and (2) raise at least one common question.

May they (or any one of them) sue the taxi driver and the cab company as co-defendants? Yes, because the claims against the two (1) arise from the same T/O and (2) raise at least one common question.
Then, with these parties, assess whether the case invokes diversity or FQ.

Question 52

Joinder: NECESSARY AND INDISPENSABLE

PARTIES

Answer 52

The case has been filed. Now the court might force some nonparty (“absentee”) to join in the case.
Why would a court force a nonparty into the case? -> because he is necessary

• (step 1) WHO’S NECESSARY (OR “REQUIRED”)?
  An absentee (A) who meets ANY of these tests:
  a. Without A, the court cannot accord complete relief among existing parties (worried about multiple suits); OR
  b. A’s interest may be harmed if he is not joined (practical harm); OR
  c. A claims an interest that subjects a party (usually D) to a risk of multiple obligations.
  Which is probably most likely on the bar exam? -> test b

BTW, are joint tortfeasors necessary? -> never

• (step 2) CAN A BE JOINED?
  So you are necessary. NOW see if your joinder is “feasible.” It is feasible if: (1) there is PJ over you and (2) joining you will not goof up diversity jurisdiction (the court determines whether you would come in as a P or a D to see if bringing you in will goof up diversity).
  If your joinder is feasible, what happens? -> court orders joinder of absentee
• (step 3) IF A CANNOT BE JOINED
  What happens if you (A) cannot be joined (e.g., no PJ over you)? The court must do one of two things. What are the choices? -> proceed without A or dismiss entire case

How does the court make that decision? It looks at these factors:
• Is there an alternative forum available? (maybe some state court);
• What is the actual likelihood of harm to you?
• Can the court shape relief to avoid that harm to you?
What happens if the court decides to dismiss rather than to proceed without you (A)? -> we call A indespensible

(Remember that’s a Rule 12(b) defense – dismiss for failing to join an indispensable party.)

Question 53

Joinder: CLAIM JOINDER BY DEFENDANT

Answer 53

1. Counterclaim
   A claim against an opposing party. Once somebody asserts a claim against you, you are opposing parties. Your claim back against that person is a counterclaim. Usually, this is a claim by D against P. The counterclaim is part of D’s answer.
   After D serves a counterclaim against P, what must P do? -> respond under rule 12 within 21 days of service

____
There are two types of counterclaims:

1) Compulsory: Arises from the same T/O as P’s claim. Unless you have already filed the claim in another case, YOU MUST ASSERT IT IN THIS CASE.
If you do not use it, you lose it.
Is this unique? YES. This is the only compulsory claim in the world.

EXAMPLE
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?

COMPARE
When A sued B, B moved to dismiss for improper service of process. Motion granted and case dismissed. Is B barred from suing A because of the compulsory counterclaim rule? -> No
Why? B was not required to answer (because she got the case dismissed), so she was not required to assert the counterclaim.

2) Permissive: Does not arise from same T/O as P’s claim. Permissive means you are not required to file it in this case. You may sue on it in a separate case.
Subject matter jurisdiction: We must assess whether the counterclaim invokes diversity or FQ jurisdiction. If so, it’s OK in federal court. If not, we try supplemental jurisdiction.
_____

2. Crossclaim: This is a claim against a co-party. It must arise from the same T/O as the underlying action. But it is not compulsory—you may assert it here or sue separately.

Question 54

Joinder: IMPLEADER

Answer 54

Here, a defending party (usually D) is bringing in someone new. The new party is the third-party defendant (“TPD”).
On the bar, they may call this third-party practice.
If you have an impleader claim, must you assert it in this case? -> No
Remember: the only compulsory claim is the compulsory counterclaim.

D can do this only to shift to the TPD the liability that D will owe to P. So if D is found liable to P, he will try to get TPD to pay all or part of his own liability.
Easy way to spot it: this is almost always a claim for: -> indemnity or contribution

Those claims shift the liability that D owes P over to TPD. Indemnity shifts it completely (so TPD must cover the full claim). Contribution shifts it pro-rata (so TPD must cover a pro-rata portion of the claim).

Steps for impleading the TPD in the pending case:
• a. D files a third-party complaint naming the TPD; and
• b. Serve process on the TPD. (So must have PJ over TPD.)

There is a right to implead within 14 days of serving your answer. After that, you need court permission.
After TPD is joined, may plaintiff assert a claim against TPD? Yes, if the claim arises from the same T/O as the underlying case.
After TPD is joined, may TPD assert a claim against plaintiff? Yes, if the claim arises from the same T/O as the underlying case.
Subject matter jurisdiction. Remember to assess each claim separately for subject matter jurisdiction. Try diversity and federal question. If neither works, try supplemental jurisdiction.

Question 55

Joinder: INTERVENTION

Answer 55

Here, a nonparty brings herself into the case. She chooses to come in either as P (to assert a claim) or as D (to defend a claim). The court may realign her if it thinks she came in on the “wrong” side. Application to intervene must be “timely.”

1. Intervention of right. A’s interest may be harmed if she is not joined and is not adequately represented now.
2. Permissive intervention. A’s claim or defense and the pending case have at least one common question. Discretionary with court. Usually OK unless intervention will cause delay or prejudice to someone.
   Subject matter jurisdiction. Assess whether the claim by/against the intervenor invokes diversity or FQ.
   If neither applies, then try supplemental. Remember, though, a claim by an intervenor plaintiff in a diversity case is a claim by a plaintiff, so the limitation on supplemental jurisdiction may apply.

Question 56

Joinder: CLASS ACTION

Answer 56

Representative(s) (“Rep”) sues on behalf of group.

1. Initial requirements. Must demonstrate all four of these:
• Numerosity: Too many class members for practica- ble joinder. Is there a magic number? NO
• Commonality: There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.
• Typicality: Rep’s claims are typical of those of the class; and
• Representative adequate: The class Rep will fairly and adequately represent class.

2. Type of class action. You must satisfy one of these three.
• TYPE 1: “Prejudice”: class treatment necessary to avoid harm (prejudice) either to class members or to the non-class party.
Many people have claims to a limited fund of money. If they sue individually, the fund will be depleted before all claimants get to court. That would leave those later claimants with nothing. To avoid this harm, a class would allow everybody to recover at least a portion of her claim. (this is rare)

• TYPE 2: Class seeks an injunction or declaratory judgment because D treated the class members alike. Example: -> employment discrimination
Can a Type 2 class seek damages? -> Generally no

• TYPE 3: “Damages”: (1) common questions predominate over individual questions; AND (2) class action is the superior method to handle the dispute. Example: -> mass tort
So if a bus crash injures 80 people, there will be individual questions about damages, but the common questions (like whether the driver was negligent) may predominate. And the class action may be superior to 80 separate suits.

3. Rep’s complaint will say “class action.” But a case is not a class action until what?
And when it certifies the class action, the court must “define the class and the class claims, issues, or defenses.”
What else must the court do if it certifies the class action? -> appoint class counsel
Class counsel must fairly and adequately represent the interests of the class.
If you lose on the class certification motion, you may ask the court of appeals to review that decision. It’s discretionary with that court.

4. In the Type 3 class, the court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. The notice tells them various things, including:
   • they can opt out;
   • they’ll be bound if they don’t; and
   • they can enter a separate appearance through counsel.
   Is this notice required in Type 1 or Type 2 classes? -> no, type 3 only
   Who pays to give this notice? -> the rep

5. Who is bound by the judgment in a certified class action? -> all class members except those who opted out of a Type 3
There is no right to opt out of a Type 1 or Type 2 class action.

6. Can the parties settle or dismiss a certified class action? -> only with court approval
And, in all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed.
If it’s a Type 3 class, the court might give members a second chance to opt out.

• Subject matter jurisdiction
  1. A class action might assert rights under federal law, which would invoke FQ.
  2. Suppose the class seeks to invoke diversity jurisdiction.
  • For citizenship, we consider only the Rep (ignore other class members’ citizenships).
  • For amount in controversy, the Rep’s claim must exceed $75,000 (ignore other class members’ claims).
  That means: As long as the Rep is diverse from all defendants, and as long as the Rep’s claim exceeds $75,000, the class action will invoke diversity.

(very unlikely section below)
- Class Action Fairness Act (CAFA). This grants subject matter jurisdiction separate from diversity of citizen- ship jurisdiction. It lets a federal court hear a class action (of at least 100 members) if any class member (not just the representative) is of diverse citizenship from any defendant and if the aggregated claims of the class exceed $5,000,000. This makes it easier for interstate class actions to go to federal court.
There are complicated provisions to ensure that local classes (where most class members and the primary defendants are citizens of the same state) do not stay in federal court; they get dismissed (or, if they were removed from state court, are remanded to state court).

Question 57

Discovery: Basic Idea

Answer 57

Discovery is the phase of litigation in which we find out what other people know. The idea is to avoid trial by ambush—we want things known before we go to trial.

Question 58

Discovery: INITIAL REQUIRED DISCLOSURES

Answer 58

This is information that each party must give to other parties—even though no one asks for it.
Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference, what must each party disclose?

1. Identities of persons who have discoverable info that you (the disclosing party) may use to SUPPORT your claims or defenses.
   What info do you give about these people?-> Name, telephone number, address, and topics on which they have evidence.
2. Documents and things you may use to support your claims or defenses. You may produce copies or a description of these things.
   Does the info to be disclosed include photographs, recordings, and electronically stored info (ESI)? -> yes
   So it includes things on your computer, videos and photos taken on your smartphone, etc., as well as good old-fashioned papers.
   Does the info to be disclosed include tangible things? -> yes

EXAMPLE
P sues D, alleging that D manufactured a defective tire that blew out, causing injury to P. P has the remnants of the tire. P must disclose this fact and provide to D a description of the tire remnants.
What if you are aware of documents, ESI, or things that support your case, but they are not in your custody or control? Must you disclose them? -> No

3. Computation of relief and documents/ESI supporting it.
   Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought.
4. Insurance coverage. D must disclose any insurance that might cover all or part of the judgment in the case.
   Is this true even though existence of such insurance will probably not be admissible at trial? -> yes, discoverable is broader than admissible

If you fail to disclose something you were required to disclose, you cannot use that material in the case (unless the failure to disclose was substantially justified or harmless).

Question 59

Discovery: REQUIRED DISCLOSURES ABOUT
EXPERT WITNESSES (“EW”)

Answer 59

Later in the case, at a time directed by the court, each party must identify expert witnesses “who may be used at trial.” We are talking here about people who, because of expertise, are hired to give opinion testimony in the case.

Suppose a party hired an expert to help it prepare the case, but does not intend to call that expert to testify at trial. Is this an expert witness? -> No, that is a consultant

Facts known and opinions held by consulting experts are generally not discoverable—only in “exceptional circumstances.”

As to an EW “who may be used at trial,” what must each party generally disclose to the other parties? -> identity of EW and written report by EW

The written report must include:
• opinions EW will express,
• bases for the opinions,
• facts used to form the opinions,
• EW’s qualifications, and
• how much EW is being paid.
Thereafter, may a party take the deposition of EW? -> Yes

That party should subpoena EW to compel her attendance.
That party must pay the EW a reasonable fee per hour (set by the court*).
Earlier drafts of the EW report and communications between the lawyer and the EW are work product.

If you fail to disclose something you were required to disclose, you cannot use the EW in the case unless your failure was justified or harmless.

Question 60

Discovery: REQUIRED PRETRIAL DISCLOSURE

Answer 60

No later than 30 days before trial, must give detailed information about trial evidence, including identity of witnesses to testify live or by deposition and documents/ESI/things to be introduced at trial.

Question 61

Discovery: DISCOVERY TOOLS

Answer 61

Here, one party requests information from other people.
Assuming no court order or stipulation provides otherwise, a party cannot send discovery requests to another party until after the Rule 26(f) conference.
Minor exception: you can serve requests to produce earlier—more than 21 days after service of process. They are treated as though served at the Rule 26(f) conference.

1. DEPOSITIONS
   Here, a person gives live testimony in response to questions by counsel or pro se parties. The questions are usually oral, but can be written (if written, they are read by the court reporter). Deponent testifies under oath. The deposition is recorded by sound or video or stenographically and a transcript can be made.
   Can you “notice” the deposition of a party or of a nonparty? -> yes but you should subpoena a nonparty
   You don’t need to subpoena a party; just serve “notice of deposition.”
   Is the deponent required to review all her relevant files and notes before being deposed? -> No, testify from present recollection
   A subpoena “duces tecum” requires the deponent: -> to bring the requested materials with her
   Unless a nonparty agrees, what is the farthest she can be required to travel to have her deposition taken? -> 100 miles from where she resides or is employed

EXAMPLE
P sues Car Co., alleging that defective design of a fuel tank led to P’s injuries. P wants to take the deposition of Car Co.’s engineer responsible for design of the tank, but does not know the identity of that person. P could use interrogatories to Car Co. to request identification of the engineer and then take her deposition. But there is another option: -> Notice the deposition to the car company
Then Car Co. must designate the proper person to be deposed.

Limits on depositions: you cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.
Use of depositions at trial (all subject to rules of evidence):
• impeach the deponent;
• any purpose if the deponent is an adverse party;
• 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.

2. INTERROGATORIES
   Sent only to parties; never to nonparties.
   These are written questions, to be answered in writing under oath.
   How long does the party have in which to respond with her answers or objections? -> 30 days from service
   Can you respond to interrogatories by saying that you don’t know the answer? No, you must respond based upon information reasonably available to you.

EXAMPLE
P serves interrogatories on D asking about D’s legal contentions in the case. D objects, and argues that interrogatories are permitted only to inquire about facts, not legal contentions. D’s objection is bogus. Contention interrogatories are fine.

What is the maximum number of interrogatories you can send to a party (unless there is a court order or stipulation for more)? -> 25
And that includes subparts, so no more than 25 actual questions.
If the answers to interrogatories can be found in business records and the burden of finding them would be about the same for either party, the responding party can allow the requesting party to have access to the records.
At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence.

3. REQUESTS TO PRODUCE
   These request that someone make available for review and copying documents or things, including electronically stored information (ESI), or to permit you to enter designated property to inspect, measure, etc. The person must respond in writing within 30 days of service, stating that the material will be produced or asserting objections.
   Can you make these requests of parties and of non- parties? -> No, its of parties only. YOU CAN GET THE SAME INFO FORM NON-PARTIES W/ SUBPOENA

In what form is ESI to be produced? The requesting party specifies the form; responding party may object.

4. MEDICAL EXAM (PHYSICAL OR MENTAL)
   What is unique about this?
   To get the court order, you must show: (1) that the person’s health is in actual controversy and (2) “good cause.”
   Who can be ordered to undergo a medical exam? A party or someone in the party’s custody or legal control. This is narrow (e.g., an employee is not in the custody or legal control of an employer).

EXAMPLE
Parent sues on behalf of minor child for damages for personal injuries inflicted by D. D wants an order for a physical examination of minor child. Though the child is not a party, she is in the custody/legal control of Parent, so the court may order the medical exam.

The party seeking the order chooses the licensed person to perform the exam.
Suppose the court orders a medical exam of Joe. The doctor examines Joe and writes her report and gives it to the party who requested the exam. Joe would like to see that report. Can Joe get a copy of it? -> Yes
If Joe requests and obtains the report, he must (on request) produce to the other party all medical reports by his own doctors about that medical condition. He also waives any doctor/patient privilege he may have had with his doctor regarding that condition.

5. REQUEST FOR ADMISSION
   Sent only to parties; never to nonparties.
   This is a written request that someone admit things. Responding party must respond in writing within 30 days of service, either denying specifically or objecting.

EXAMPLE
P sends D a request for admission saying “admit or deny that you were drinking alcohol while driving your car.” If D fails to deny specifically (or to object to the request) in writing within 30 days, what happens? -> he is deemed to admit.

Can the responding party say she does not know the answer? Only if she states she made a reasonable inquiry and cannot find enough information from which to admit or deny.
Often used to authenticate documents—“admit that this is the contract.”

• PARTIES SIGN SUBSTANTIVE ANSWERS TO DISCOVERY UNDER OATH
  Rule 11 does not apply to discovery documents. By another Rule, every discovery request and response is signed by counsel certifying:
  • it is warranted,
  • it is not interposed for an improper purpose, and
  • it is not unduly burdensome.
• DUTY TO SUPPLEMENT
  After you respond to discovery, suppose circumstances in the real world change. In light of these new circumstances, your response to a required disclosure, interrogatory, request for production, or request for admission is now incomplete or incorrect.
  Must you do anything? -> Yes, you have a duty to supplement your response

Question 62

Discovery: SCOPE OF DISCOVERY

Answer 62

• STANDARD
  What can you discover? -> anything relevant to a claim or defense and proportional to the needs of the case.
  Is discoverable broader than admissible at trial? -> yes

EXAMPLE
Can a party discover something like hearsay, even though it would not be admissible at trial? Yes—just so it’s relevant to a claim or defense and proportional to the needs of the case.

Remember, something harmful to you need not be disclosed in required disclosures, but may well be discoverable using the regular discovery tools.

In area of ESI, court can order production and allocate expense between parties in certain cases.

• PRIVILEGE
  You can object to discovery on the basis of evidentiary privilege–e.g., confidential communications between attorney and client.
• WORK PRODUCT*
  Work product or “trial preparation materials” (material prepared in anticipation of litigation).
  Must work product be generated by a lawyer? -> No, by party or any rep of party
  Also, a party has the right to demand discovery of any previous statement that he has made regarding the case.

qualified work product: can get if you can show 1) substantial need and 2) it’s not otherwise available

Absolute Work Product: opinion work product is absolutely protected – cannot overcome

The identity of people with discoverable information is discoverable.

• ASSERTING PRIVILEGE OR WORK PRODUCT
  If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail.

You do this in a document that lists the materials protected by date, author, recipient, and privilege
or protection claimed. It must be in enough detail to allow the judge to determine whether the material is protected. What is this document called? -> privilege log
If you inadvertently produce privileged or protected material, you should notify the other party promptly. The other party then must return, sequester, or destroy it pending decision by the court about whether there has been a waiver.

Question 63

Discovery: ENFORCEMENT OF DISCOVERY

RULES

Answer 63

There are three ways courts get involved in discovery disputes:

• 1. PROTECTIVE ORDER
     If the responding party thinks a discovery request subjects it to annoyance, embarrassment, undue burden or expense (e.g., ESI is not reasonably accessible without undue expense (e.g., deleted files) or the request is cumulative and not proportional to the case), what can she do? -> move for a protective order

She must certify that she tried in good faith to resolve the issue without court involvement – that she asked the other side to “meet and confer.”
If the court agrees, it can:
• Deny discovery or
• Limit it or
• Permit it on specified terms. Example of this: ->

EXAMPLE
P and D are involved in litigation over a trade secret held by D. D is worried that if P discovers the trade secret, P will use the secret in the marketplace. Can D request a protective order that the trade secret be used only in litigation and not used in the market? -> Yes

• 2. RESPONDING PARTY RESPONDS, BUT NOT FULLY
     Here, the responding party does respond, but fails to answer all questions, because he objects to them (or some of them).
• 3. NO RESPONSE TO DISCOVERY REQUEST
     Here, the responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production.

Question 64

Discovery: SANCTIONS AGAINST A PARTY

Answer 64

The party seeking sanctions generally must certify that she tried in good faith to get the info without court involvement – to “meet and confer.”

Less than full response:
• You move for an order compelling the party to answer the unanswered questions, plus costs (including attorney’s fees) of bringing motion.
• IF the party violates the order compelling him to answer, “merits” sanctions plus costs (and attorney’s fees re the motion) and could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam).

No response:
“Merits” sanctions plus costs (and attorney’s fees for the motion). Here, there is no need to get an order compelling answers. Go directly to “merits” sanctions.
MERITS SANCTIONS (choices available to judge):
• Establishment order (establishes facts as true)
• Strike pleadings of the disobedient party (as to issues re the discovery)
• Disallow evidence from the disobedient party (as to issues re the discovery)
• Dismiss plaintiff’s case (if bad faith shown)
• Enter default judgment against defendant (if bad faith shown)

Litigation hold
When litigation is reasonably anticipated, parties must preserve discoverable information.
Suppose ESI is truly LOST—it cannot be recovered or restored. And suppose it was lost because the party in control of it failed to take reasonable steps to preserve it. The court may “order measures” to cure the harm caused to the other party.
Can the court enter an “adverse inference” order: tell the jury that it must presume that the lost info would be unfavorable to the party that lost the ESI? -> Only if that party lost the ESI with the intent to deprive you of it.

Question 65

Adjudication Without Trial: BASIC IDEA

Answer 65

There are various ways a case can be resolved without going to trial. In addition, we need to know about “provisional” (temporary) injunctive relief.

Question 66

Adjudication Without Trial: PRELIMINARY INJUNCTIVE RELIEF

Answer 66

Here, P is planning to file suit (or has sued). P is wor- ried that before suit can go to trial, D may do (or fail to do) something that will prejudice P’s case. P wants injunctive relief – a court order that D either (1) do some- thing or (2) refrain from doing something. The court is nervous about doing this because the merits of the underlying dispute have not been decided.

EXAMPLE
D worked for Employer for years. D learned Employer’s trade secrets and had extensive contact with Employer’s clients. D quit his job with Employer and is starting a rival business. Employer claims that D is misappropriating trade secrets and soliciting clients in violation of a valid covenant not to compete. Employer sues D and wants the court to enjoin D from using the trade secrets and soliciting clients in the meantime, pending resolution of the underlying dispute.

An order that maintains the status quo until trial is a: preliminary injunction
Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek: a TRO

Question 67

Adjudication Without Trial: TEMPORARY RESTRAINING ORDER (“TRO”)

Answer 67

Whenever a court does something without giving notice to the other party, it may be called “ex parte.”

The court issues a TRO ex parte ONLY if:

1. Applicant files a paper under oath clearly show- ing that if the TRO is not issued, he will “suffer immediate and irreparable harm” if: -> he must wait until the other side is heard
2. Applicant’s lawyer certifies in writing her efforts to give oral or written notice to D or D’s lawyer (or why such notice should not be required in this case).

If the court issues the TRO, Applicant must post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

A TRO must state its terms specifically, describe in detail what D must do (or refrain from doing), state why it was issued, and why the threatened injury to P was irreparable*.

If the court issues a TRO, the order must be served on D as soon as possible.

If the court issues a TRO, what can D do? -> move to dissolve the TRO

TRO is effective for no more that 14 days (or lesser time stated by court). 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 the court extends a TRO beyond 28 days, it may be treated as a preliminary injunction.

Is a ruling granting or denying a TRO appealable as of right? -> No

Question 68

Adjudication Without Trial: PRELIMINARY INJUNCTION

Answer 68

Maintains status quo until the court can adjudicate the underlying claim on the merits.
Can a preliminary injunction be granted ex parte? -> No

The burden is on the Applicant to show:

(1) He is likely to suffer irreparable harm if the injunction is not issued;
(2) He is likely to win on the merits of the underlying case;
(3) The balance of hardship favors him (threatened harm to Applicant outweighs harm to other party if the injunction is issued); and
(4) The injunction is in the public interest.

There is no right to an injunction. The matter is in the court’s discretion.
As with a TRO, if the court grants the preliminary injunction, the applicant must post a bond.
Also as with a TRO, the preliminary injunction must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued.
In granting or denying the preliminary injunction, the court must make specific findings of fact and separate conclusions of law.
Is an order granting or denying a preliminary injunction appealable as of right? -> Yes

Question 69

Adjudication Without Trial: VOLUNTARY DISMISSAL

Answer 69

P wants to withdraw the case. P can make a motion for voluntary dismissal any time, which the court has discretion to grant.

P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But she must do so before: -> D serves an answer or motion for summary judgment

If P files a timely notice of dismissal, the case is dismissed “without prejudice.” What does that mean? -> P can refile the case

But you only get to do it without prejudice once. What if P files a notice of dismissal in the second case? That dismissal is “with prejudice.” What does that mean?

Question 70

Adjudication Without Trial: DEFAULT AND DEFAULT JUDGMENT

Answer 70

D does not respond to the complaint in time (21 days after being served with process; 60 days from mailing of waiver if you waived service).

• Default
  A default is a notation by the court clerk on the docket sheet in the case.
  Does the court clerk enter default automatically on the 22nd day after service of process on D? -> No, P must request entry of default. P must demonstrate that D failed to respond in time. Until default is entered, D can respond by motion or answer (even beyond 21 days).
  What is the effect of entry of default? -> cuts of D’s right to respond
  Entry of default does not entitle P to recover. What does P need to do before she can recover from D? -> get a default judgment
• Default Judgment
  How to get a default judgment.
  The clerk of court can enter judgment if:
  (1) D made no response at all;
  (2) The claim itself is for a sum certain in money;
  (3) Claimant gives an affidavit (sworn statement) of the sum owed; AND
  (4) D is not a minor or incompetent.
  If any of those is not true, though, where does P go for default judgment?
  The judge will hold a hearing and has discretion to enter judgment. Does D get notice of this hearing? -> only if he appeared in the case

EXAMPLES
(1) Notice: P sues D. D files a motion to dismiss for lack of PJ. The motion is denied. D fails to answer within 14 days after notice that the motion to dismiss was denied. P has the court enter D’s default. Here, D gets notice of the motion for entry of default because he made an appearance in the case.
(2) Relief #1: P sues D for $100,000. What is the most she can recover on a default judgment? -> >=$100,000
(3) Relief #2: P sues D for damages and not an injunction. On default judgment, can the court enter an injunction? -> No, cannot get diff relief than what you pleaded
If the case goes to trial, P can recover more (and a different kind of relief) than she put in her complaint.

• Motions to Set Aside Default or Default Judgment
  D may move to have the court set aside a default or default judgment by showing good cause (like excusable neglect) and what else: -> a viable defense.

Question 71

Adjudication Without Trial: MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (FRCP 12(B)(6))

Answer 71

This is about whether the case belongs in the litigation stream at all. If P’s complaint fails to state a claim, the case can be dismissed.

STANDARD: In ruling on this motion, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks: “assuming these facts are true, do they state a plausible claim”?

If the answer is no—P has not stated a plausible claim—there is no sense letting the case proceed, because the law does not recognize a claim on these facts. The court might let P amend to try to state a claim, though.
Remember, the judge uses her experience and common sense to see if the facts state a plausible claim.
In ruling on this motion, does the court look at evidence? -> No, looks at face of complaint

The same motion, if made after D has answered, has a different name. What is the name? -> motion of judgment on the pleadings.

Question 72

Adjudication Without Trial: MOTION FOR SUMMARY JUDGMENT (FRCP 56)

Answer 72

Here, P stated a claim, so we’re in the litigation stream. But we might not need a trial. Summary judgment weeds out cases in which we don’t need trial.

Party moving for summary judgment must show:
• There is no genuine dispute on a material fact and
• That she is entitled to judgment as a matter of law.

If the standard is met, must the court enter summary judgment? -> No, it has discretion to deny
Any party can move for this no later than 30 days after close of discovery.
Can the motion be for “partial” judgment—e.g., as to liability, but allow the case to go to trial on damages? -> Yes
In summary judgment, can the court look at evidence? -> Yes
The court views that evidence in the light most favorable to the nonmoving party.
The parties proffer the evidence, usually (1) affidavits or (2) declarations or (3) deposition testimony or (4) interrogatory answers. Why can these things be considered “evidence”? -> because they are all under oath

If the party opposing summary judgment needs more time to find evidence to oppose the motion, she may file an affidavit or declaration with the court stating what that evidence would be. The court may allow more time for the party to obtain evidence.

Question 73

CONFERENCES, TRIAL, JUDGMENT, AND POST- TRIAL MOTIONS: BASIC IDEA

Answer 73

Our case was not resolved through pretrial adjudication and may be adjudicated at trial.

Question 74

CONFERENCES, TRIAL, JUDGMENT, AND POST- TRIAL MOTIONS: JUDICIAL MANAGEMENT

Answer 74

• Rule 26(f) Conference
  Unless court order says otherwise, at least 21 days before scheduling order, parties “meet and confer.” They discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information. In addition, what must they present to the court? -> a detailed discovery plan
  It must be presented to the court no later than 14 days after the Rule 26(f) conference.
  The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (e.g., deleted files), etc.
• Scheduling Order
  Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc. This is a roadmap for how the litigation proceeds up to trial.
• Pretrial Conferences
  The court may hold “pretrial conferences” to process the case.

The final pretrial conference determines the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order, which supersedes the pleadings. This order is a roadmap of issues to be tried, evidence to be presented at trial, witness- es, etc. SO THERE ARE NO SURPRISES AT TRIAL!

Question 75

CONFERENCES, TRIAL, JUDGMENT, AND POST- TRIAL MOTIONS: JURY TRIAL

Answer 75

If we have a jury, it determines the facts and returns the “verdict.” If we don’t have a jury, the judge determines the facts (in a “bench trial”).
Random question: what is a motion in limine? A pretrial motion to decide whether the jury should hear certain evidence.

• Right to Jury Trial in Federal Court
  The Seventh Amendment preserves the right to jury in “civil actions at law,” but not in suits at equity. What if a case includes both law and equity? Suppose a case includes a claim for damages (legal relief) and for an injunction (equitable relief). Standard: the jury decides all facts for damages claim but not equity claim.

What if a fact (e.g., whether D trespassed) underlies both a claim for damages and a claim for an injunction? -> Jury decides it
In what order will the trial usually proceed? -> try the jury issues first
Does the Seventh Amendment apply in state court? -> No, federal civil cases only
Must demand the jury IN WRITING no later than 14 days after service of the last pleading addressing a jury triable issue. If you don’t, you waive the right to a jury. The last pleading addressing a jury issue is usually the answer.

Selection and Composition of the Jury
In the jury selection process (“voir dire”), each side might ask the court to strike (remove) potential jurors. There are two kinds of challenges to jurors:
“For cause” – e.g., potential juror will not be impartial. How many motions to strike “for cause” can a party make? -> No limit
“Peremptory” – historically, one did not need to state a reason – you just dismiss the potential juror. Is there a limit on the number of these strikes? -> yes, 3 per side
**Peremptory strikes may only be used in a race and gender-neutral manner. Why? -> jury selection is state action.
How many jurors are on a civil jury in federal court? ->min 6 max 12
Generally, all jurors participate in the verdict unless excused for good cause.
Unless the parties agree otherwise, what jury vote is required for a verdict? -> unanimous

• Jury Instructions
  The jury decides facts, but is instructed on the law by the judge.
  Parties submit proposed jury instructions to the judge. They do this at the close of all evidence (or earlier if the court says so).
  Before final argument and instruction, the court informs the parties of (1) what instructions it will give and (2) what proposed jury instructions it rejected.
  Must the parties be allowed to make specific objections (1) to the instructions and (2) to the rejection of proposed instructions?-> Yes, the must be allowed to object on the record and out of they jury’s hearing.

If objections are not made before the jury is “charged” (given the instructions), the party cannot raise a problem with jury instructions in a post-trial motion or on appeal.
One exception: even if a party did not object timely, a court can consider a jury instruction if it contained plain error.

• Forms of Verdicts
  The judge determines what verdict form the jury will use.
  1. General. This just says who wins and, if P wins, what the relief is.
  2. Special. Here, the jury answers in writing specific written questions about the facts in dispute, but does not tell us who wins or loses.
  3. General verdict with written questions. Here, the jury not only gives a general verdict, but it also answers specific questions submitted to it. The questions ensure that the jury focused on the important issues.
• Entry of Judgment
  If the jury returns a general verdict, who enters the judgment? -> clerk of court
  If the jury returns a special verdict (or general verdict with written questions) and the answers are consistent with each other and with the verdict, what happens? -> judge approves the judgment and clerk enters it.

In a case involving general verdict with written questions, if the answers are consistent with each other but inconsistent with the verdict, the court may enter an appropriate judgment consistent with the answers. (Or it can tell the jury to reconsider or order a new trial.)
What if the answers are inconsistent with each other and one or more is inconsistent with the general verdict, what happens? -> court cannot enter a judgment
The court either instructs the jury to reconsider or orders a new trial.

• Juror Misconduct
  In general, a verdict may be “impeached” based upon “external” matters. So if jurors were bribed, or based the verdict on their investigation of matters outside of court instead of the evidence at trial, a new trial can be ordered. Non-jurors may give first-hand evidence of such things.
  But a verdict will not be set aside if the misconduct was harmless – juror chatted for a moment with P about the weather (not the case).

Question 76

CONFERENCES, TRIAL, JUDGMENT, AND POST- TRIAL MOTIONS: NONJURY (“BENCH”) TRIAL

Answer 76

When there is no jury (either Seventh Amendment did not apply or the parties waived the right to jury trial), who determines the facts at trial? -> the judge

Must the judge record her “findings of fact”? Yes—she must state them on the record or in writing.
What else must the judge record? -> her conclusion of law stated separately from findings of fact
What else must be entered? -> the judgment
The judgment is very short—just telling who wins and (if P won) the relief.

Question 77

CONFERENCES, TRIAL, JUDGMENT, AND POST- TRIAL MOTIONS: MOTIONS AT AND AFTER TRIAL

Answer 77

1. Motion for Judgment as a Matter of Law (“JMOL”)
   For centuries, this was called “directed verdict.” It applies in jury trial. If the judge grants JMOL, the case will not go to the jury—the judge grants the motion and enters judgment.
   The motion is based upon evidence presented at trial. Why would a judge grant JMOL and refuse to let the jury decide the case? -> because reasonable people could not disagree on the result
   It’s like summary judgment (where there was no dispute of material fact), except that this comes up at trial instead of before trial.
   Like summary judgment, the court views the evidence in the light most favorable to the non-moving party.
   When can a party move for JMOL? -> after the other side has been heard at trial
   P presents her evidence at trial and rests. At that point D may move for JMOL.
2. Renewed Motion for Judgment as a Matter of Law (“RJMOL”) [same as JMOL but raised after judgment.
   The elements of P’s claim are W, X, Y, and Z. At trial, P puts on evidence of W, X, and Z. She puts on no evidence of Y. D moves for JMOL. The court should grant it, because reasonable people could not disagree – it is clear that D should win. But the judge denies JMOL (probably figures the jury will get it right). The case goes to the jury, which returns a verdict for P! D can move for RJMOL. It may be granted because:
   If RJMOL is granted, the court enters judgment for the party that lost the jury verdict! (As with JMOL, the court views the evidence in the light most favorable to the non-moving party.)
   When do you move for RJMOL? Within 28 days after entry of judgment.

What is an absolute prerequisite to bringing RJMOL? You must have moved for JMOL at proper time at trial. Failure to do so waives RJMOL.
Not only that, but the RJMOL motion must be based upon the same grounds as the JMOL motion.

• 3. Motion for a New Trial
     Judgment is entered, but some error at trial requires that we should start over and have a new trial. This can be based on any (non-harmless) error that makes the judge think we should have a do-over. Party moves for this within 28 days after judgment.
     Examples:
     (1) Judge gave an erroneous jury instruction;
     (2) New evidence that could not have been gotten before with due diligence;
     (3) Misconduct by juror or party or lawyer, etc.;
     (4) Judgment is against weight of the evidence (serious error of judgment);
     (5) Inadequate or excessive damages.
     Maybe a party met the standard for RJMOL but waived it by not moving for JMOL at trial. She could move for new trial on the grounds that the verdict is against the weight of the evidence.
     Ordering new trial is less drastic than ordering RJMOL. Why? New trial results in starting over, so: same party might still win
     RJMOL results in taking judgment away from one party and giving it to the other.
• Remittitur and Additur
  One ground for new trial is that the jury’s damages figure is excessive or inadequate. What is the majority standard for ordering new trial on this ground? -> the damages figure shocks the conscience

But new trial is a lot of work. To avoid a new trial, the court might suggest remittitur or additur.
Remittitur – playing hardball with the P.

EXAMPLE
P suffered minor damage, but the jury awarded $200,000. The court finds the damages figure shocks the conscience. It can order new trial or suggest remittitur. This gives P a choice: take a lesser amount (say, $20,000) or go through new trial. Is remittitur OK in state and federal court? -> Yes
Can the court simply lower the figure that was set by the jury? No. That would violate the Seventh Amendment. So the court must give P the choice of accepting the lower amount or going to a new trial.

Additur – playing hardball with the D.

EXAMPLE
P suffered very serious harm, but the jury awarded only $30,000. The court finds the damages figure shocks the conscience. It can order new trial or suggest additur. This gives D a choice: pay a greater amount in damages (say $400,000) or go through new trial. Is additur OK in state and federal court? -> only okay in state court.
Additur violates the Seventh Amendment. Because that applies only in federal court, state courts are free to recognize additur.

Question 78

CONFERENCES, TRIAL, JUDGMENT, AND POST- TRIAL MOTIONS: OFFER OF JUDGMENT

Answer 78

At least 14 days before trial, let’s say D offers to pay $50,000 to settle P’s claim. P can accept and judgment will be entered for that amount. Suppose P rejects it and goes to trial. P wins a judgment that is not more favorable than the offer. P is liable to D for D’s costs incurred after the offer was made.

Question 79

CONFERENCES, TRIAL, JUDGMENT, AND POST- TRIAL MOTIONS: MOTION FOR RELIEF FROM ORDER
OR JUDGMENT

Answer 79

Here, we ask the district court to set aside an order or judgment it entered.

[Grounds-> Timing]

1. Clerical error
   Any time

2. Mistake, excusable neglect (including viable defense)
Reasonable time (never more than 1 year)

3. Fraud, misrepresentation, or misconduct by opposing party
Reasonable time (never more than 1 year)

4. New evidence that could not have been discovered with due diligence for a new trial motion [remember, 28 days to move for new trial]
Reasonable time (never more than 1 year)

5. Judgment is void (e.g., no SMJ)
Reasonable time (no maximum)

Question 80

Appellate Review: BASIC IDEA

Answer 80

The federal district court has entered an order. The losing party wants to seek review by the United States Court of Appeals for the appropriate circuit.

Question 81

Appellate Review: FINAL JUDGMENT RULE

Answer 81

Starting point: loser has a right to appeal if the order is a “final judgment.”
A final judgment is one that determines the merits of the entire case. To determine whether an order is a final judgment, ask “after making the ruling”: -> does the trial judge have anything left to do on the merits of the case? (Even new trial is non-final)

If the answer is yes, it is not a final judgment, it is an “interlocutory order.”
If it is a final judgment, where and when do you file your notice of appeal? -> in the district court within 30 days after entry of judgment

Suppose that after a case was removed from state to federal court, the federal court remands the case to state court. Can the remand order be appealed to the U.S. Court of Appeals? -> generally no

Question 82

Appellate Review: INTERLOCUTORY (NON-FINAL)

REVIEW

Answer 82

If the district court’s order is not a final judgment, it might be appealable based upon one of these doctrines.

• 1. Orders Reviewable as of Right
     Interlocutory orders reviewable as of right: orders granting, modifying, or refusing preliminary or permanent injunctions.
     Does this include orders granting, modifying, or refusing a temporary restraining order? -> No
     Remember a TRO is good for a maximum of 14 days, renewable for up to another 14 days. Suppose the court enters a TRO of 14 days. Then, 10 days later, the court extends the TRO for 30 days. Can the restrained party appeal? -> Yes, because we treat it as a preliminary injunction
• 2. Interlocutory Appeals Act
     Allows appeal of nonfinal order if:
     The district judge certifies that it involves a controlling issue of LAW;
     As to which there is substantial ground for difference of opinion; and
     The court of appeals agrees to hear it.
• 3. “Collateral Order” Doctrine
     Appellate court has discretion to hear ruling on an issue if that issue:
     A. Is distinct from the merits of the case;
     B. Involves an important legal question; and
     C. Is essentially unreviewable if parties await a final judgment. (think state immunity from suit)
• 4. Multiple Claims and Parties
     When more than one claim is presented in a case, or when there are multiple parties, the district court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay.
• 5. Class Action
     Court of appeals has discretion to review an order granting or denying certification of class action. Must seek review at the court of appeals within 14 days of order. Appeal here does not stay the proceedings at district court unless the court of appeals or district court says so.
     Must the court of appeals grant this appeal? -> No
• 6. Extraordinary Writ (Mandamus or Prohibition)
     An original proceeding in the court of appeals to compel the district judge to make or vacate a particular order. Not a substitute for appeal; available only if the district court is violating a clear legal duty.

Question 83

Appellate Review: STANDARDS OF REVIEW BY THE

COURT OF APPEALS

Answer 83

1. When the district judge decides questions of law, by what standard does the court of appeals review? -> de novo
   District judge gave a jury instruction that put the burden of proof at trial on the wrong party. Why does the court of appeals review that de novo? -> because content of jury instruction is question of law
2. In a non-jury trial, when the district judge determines questions of fact, the court of appeals will affirm unless: -> findings are clearly erroneous
3. In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless: -> reasonable people could not have made that finding
4. On discretionary matters (e.g., whether to grant a motion to amend pleadings, to allow permissive intervention), the court of appeals will affirm unless: -> the district judge abused discretion
   Suppose the court of appeals decides “I would have ruled the other way on this, but what the district judge did is in the ballpark. It’s not goofy.” Must it affirm? -> Yes
   We saw above that the content of jury instructions is reviewed de novo. But what about review of the district judge’s decision whether to give a particular jury instruction? -> reviewed for abuse of discretion
   Not every error (even an error of law) requires reversal on appeal. No reversal is required if the error is: -> harmless

Question 84

Preclusion: BASIC IDEA

Answer 84

Whenever there has been an earlier case, watch for these issues, which concern the preclusive effect of a prior judgment on the merits. The question is whether a judgment already entered (Case 1) precludes litigation of any matters in another case (Case 2).
If Case 1 and Case 2 are in different judicial systems (e.g., state and federal), the court in Case 2 applies the preclusion law of the judicial system that decided Case 1.

Case 1 is litigated in federal court in Kentucky. Case 2 is litigated in state court in Arkansas. What preclusion law does the state judge in Case 2 use to determine whether there is claim or issue preclusion? -> federal law
If Case 1 were litigated in state court in Colorado, the court in Case 2 would apply Colorado law to determine whether there is claim or issue preclusion.

Question 85

Preclusion: CLAIM PRECLUSION (RES JUDICATA)

Answer 85

You only get to sue on a claim once. So you only get one case in which to vindicate all rights to relief for that claim.

• Requirements
  1. Case 1 and Case 2 were brought by the same claimant against the same defendant.
  2. Case 1 ended in a valid final judgment ON
  THE MERITS. General rule: Unless the court said otherwise when it entered the judgment, any judgment is “on the merits” UNLESS it was based on: jurisdiction, venue, or indispensable parties

This is true even if there was no adjudication in Case 1.

EXAMPLE
Case 1: P sues D. Default judgment is entered for P.
Case 2: P sues D in another court, asserting the same claim asserted in Case 1. D argues that Case 2 should be dismissed under claim preclusion. Was the judgment in Case 1 “on the merits?” -> Yes

3. Case 1 and Case 2 asserted the “same claim.”
Majority view (including federal law): A claim is any right to relief arising from a transaction or occurrence (T/O).
Important minority view: There are separate claims for property damage and for personal injuries because those are different primary rights.

Question 86

Preclusion: ISSUE PRECLUSION (COLLATERAL ESTOPPEL)

Answer 86

This is narrower than claim preclusion. Here, an issue was litigated in Case 1. The same issue is presented in Case 2. But if issue preclusion applies, we will not allow the issue to be relitigated in Case 2. We deem it established in Case 2.

• Requirements
  1. Case 1 ended in a valid, final judgment on the merits;

2. The same issue was actually litigated and determined in Case 1; and
3. The issue was essential to the judgment in Case 1. That means the finding on this issue is the basis for the judgment.
4. Against whom can issue preclusion be asserted? It can only be used against somebody who was a party to Case 1 or in “privity” with a party. “Privity” means that a party to Case 1 represented someone who was not a party to Case 1. Example: Class action, where Rep represents members, who are bound even though they were not parties.
   Why is this the rule?
5. By whom can issue preclusion be asserted?
   Every court agrees that issue preclusion can be used by someone who was a party to Case 1 (or represented by a party). The big question is whether it can be used by someone who was not a party to Case 1 (or represented by a party).
   When someone who was not a party to Case 1 tries to use issue preclusion in Case 2, it is called “nonmutual” issue preclusion. It comes up in two ways:
   • Nonmutual defensive issue preclusion (the one using it was not a party to Case 1 and is D in Case 2).
   (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 one who was party to Case 1?
   (5) BUT, is it being asserted BY someone (you) who was NOT party to Case 1, and you are D in Case 2. Federal law and most states say it’s OK so long as: -> the party in Case 1 had a full chance to litigate
   • Non-mutual offensive issue preclusion (the one using it was not a party to Case 1 and is P in Case 2).

*There is a trend, including federal law, that says non-mutual offense is okay if fair. Factors below from a Hypo:

(a) Joey had a full and fair opportunity to litigate in Case 1.
(b) Joey had an incentive to litigate strongly in Case 1 (he did because he knew that you owned the
car, so he did not want to lose Case 1 because you might then sue him).
(c) You could not have joined easily in Case 1. So if you could easily have joined the case by Roommate (it would have been convenient because, e.g., it was in your hometown), the court in Case 2 might not let you use nonmutual offensive issue preclusion.
(d) There are no inconsistent findings on this issue.
So if there had been multiple cases about this wreck, and sometimes Joey was found negligent and sometimes not, it would be unfair to let you get issue preclusion on a negligence finding.

Question 87

Which orders are immediately appealable even if it is not a final order?

Answer 87

Interlocutory (i.e., nonfinal) orders that may be immediately appealed include: (i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction), (ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships, (iii) decrees in admiralty cases that find liability but leave damages to be assessed later, (iv) a patent infringement order where only an accounting is wanting, and (v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.

Question 88

When an action involves multiple claims or parties, and a judgment is entered that disposes of only some of the parties or claims… is the judgment immediately appealable?

Answer 88

When an action involves multiple claims or parties, and the court enters a judgment as to fewer than all the claims or all the parties, it is deemed a final, appealable judgment only to the extent the court makes an express determination that there is no just reason for delay.

Generally, a judgment as to only some of the claims or parties is not immediately appealable, regarding the parties who were disposed or as to the claims that were disposed.

It is untrue that a judgment regarding only some of the parties or claims is not immediately appealable until a final judgment is rendered as to all claims and all parties because such judgments are appealable if the judge expressly makes a determination that there is no just reason for delay.

Question 89

Plaintiff Merger

Answer 89

Merger occurs when the plaintiff wins; her cause of action is said to “merge” into the judgment such that she cannot relitigate the cause of action later.

Question 90

A pedestrian was injured in a car accident involving two cars. The pedestrian filed a negligence action in federal district court against the first driver, seeking $100,000 in damages. The pedestrian is a citizen of State A and the first driver is a citizen of State B. The first driver then filed a third-party claim against the second driver, claiming that the second driver is responsible for half of the harm caused to the pedestrian and seeking to recover half of any liability the first driver is found to have to the pedestrian. The second driver is a citizen of State A.

Does the federal court have subject matter jurisdiction over the third-party claim asserted by the first driver against the second driver?

Answer 90

The court has supplemental jurisdiction over the third-party claim. Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff must be a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. In the instant case, the case is properly in federal court because diversity jurisdiction exists for the underlying claim (i.e., the claim by the pedestrian against the first driver), given that the pedestrian is from State A, the first driver is from State B, and the amount in controversy is $100,000. The third-party indemnity claim, however, cannot invoke diversity jurisdiction, even though the first driver is from State B and the second driver is from State A, because the amount claimed is $50,000.

When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. (Essentially, this means that the supplemental claim must arise from the same common nucleus of operative fact as the claim invoking federal subject matter jurisdiction.)

Question 91

A manufacturer of widgets was incorporated in and has its principal place of business in State A. The manufacturer also operates its own stores in State A, State B, and State C, through which it sells its widgets to consumers. A consumer who resides in State D visited a State D store to purchase a widget. The State D store did not have the widget he needed, and employees at the store directed him to the State B store operated by the manufacturer. The consumer visited the manufacturer’s State B store and purchased the widget. The consumer returned to his home in State D, where he was injured while using the widget. The consumer intends to file a products liability action against the manufacturer in federal district court.

In what district or districts is venue proper?

Answer 91

Venue is proper in the District of State A, the District of State D, and the District of State B. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. The District of State D is proper because a substantial part of the events giving rise to the claim—use of the widget and the injury—took place there. Substantial events also occurred in the District of State B (the sale). Additionally, venue is proper in other districts because the manufacturer is deemed to reside there.

Question 92

what is a 26(f) conference?

Answer 92

At a Rule 26(f) conference, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court.

Question 93

when may a party object to personal jurisdiction?

Answer 93

Federal Rule of Civil Procedure 12 provides that objections to personal jurisdiction may be asserted by pre-answer motion or in the answer-provided that the objection is asserted in the defendant’s first response. If the objection to personal jurisdiction is not presented in the first response, the objection is waived.

Question 94

When is venue proper?

Answer 94

Venue is proper when all the defendants reside in the same state as the court

otherwise, venue is proper where cause or causes of action occurred

Question 95

third party defendant claims

Answer 95

A third-party defendant may assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff’s original claim.

a third-party defendant’s claim against the plaintiff is not compulsory

Third-party claims may be asserted only to obtain recovery, and that recovery must be for the defendant/third-party plaintiff’s own liability to the plaintiff. (can’t deny liability altogether by suing a third party… have to be seeking recovery)

Question 96

Amendments to complaints substituting a new defendant for one originally named are allowed and the amendment will relate back to the time the original complaint was filed if:

Answer 96

(i) the claims in the amendment arise from the same transaction or occurrence as the claims set out in the original pleading; and
(ii) within the time allotted for serving the original complaint (90 days from filing per Federal Rule 4(m)), the new defendant received such notice of the action that it will not be prejudiced in defending on the merits and KNEW OR SHOULD HAVE KNOWN that the action would have been against it (the new defendant).

Question 97

When can you file a motion to dismiss for improper venue?

Answer 97

Objections to venue are waived if not asserted in the defendants’ first response to the complaint-whether that first response is the answer or a Rule 12(b) pre-answer motion.

Question 98

Basic rules of service of process

Answer 98

Rule 4 allows for: (i) personal service, (ii) service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein, or (iii) service upon an authorized agent of the defendant.

Alternatively, service may be made as provided by the rules of the state in which the federal court sits or the state in which service is to be effected, regardless of the basis of subject matter jurisdiction.

Question 99

scope of discovery generally

Answer 99

In general, discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense and porportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to the information, the resources of the parties, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits. It is not required that the information itself be admissible at trial.

Without waiting for a discovery request, as an initial disclosure, a party must provide the names of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses (unless solely for impeachment).

Question 100

Work Product Doctrine Protection

Answer 100

Qualified immunity.

Documents prepared in anticipation of litigation by a party or its representative are not discoverable unless the opposing party can show substantial need and that it cannot obtain the materials in an alternative way without undue hardship.

Question 101

What fees are required if a motion to compel is granted?

Answer 101

The court may not impose sanctions on the defendant, but it must require the defendant to pay the plaintiff’s reasonable expenses incurred in making the motion. If a motion to compel is granted, the court must require the opposing party to pay the movant’s reasonable expenses incurred in making the motion. However, the court may not order this payment if the movant filed the motion before attempting to seek production without a court order, if the nondisclosure was substantially justified, or if other circumstances exist that make an award of expenses unjust.

Question 102

Peremptory challenges to jury selection

Answer 102

Peremptory challenges allow an attorney to disqualify a potential juror because the juror displays an attitude or some characteristic that appears unfavorable to the attorney’s client but that does not rise to the level of bias that would present grounds for a challenge for cause. A party cannot use peremptory challenges if the court suspects the challenge is for race, national origin, religion or gender, which violate the juror’s equal protection rights under the Fourteenth Amendment. If the court detects a pattern of excluding jurors for any of these reasons, the opposing party can object, and the party may be required to justify the challenge by providing other nonobjectionable means.

Question 103

Objecting to jury instructions to preserve appeal

Answer 103

Procedural mistakes (i.e., matters other than legal theories) are asserted by parties by raising a timely objection at trial. Failure to timely object waives the right to raise that issue on appeal.

Question 104

Defendant’s rights w/ default judgment

Answer 104

A defendant against whom a default is entered loses the right to contest liability unless the entry of default is set aside. However, the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages. If the defendant has “appeared,” even though he has not answered, he must be notified of the request for a default judgment by first-class mail at least seven days before the hearing on the application for a default judgment. Appearance includes any actual formal appearance before the court and any other action that clearly indicates that the defendant intends to contest the case on the merits.

Question 105

timeline for appealing a denial of class certification

Answer 105

a district court’s order granting or denying certification of a class action can be appealed within 14 days of entry of the order.

It is immediately appealable.

Question 106

Remittitur basics

Answer 106

The court may deny the motion contingent on the plaintiff accepting a lesser award by means of remittitur. If the judge believes that the jury’s compensatory damages award is so excessive as to “shock the conscience” (or, in a diversity case, if the award meets the state standard for excessiveness), the judge may order a new trial or may offer the alternative of remittitur. When offered remittitur, the plaintiff is given the choice between accepting an award less than that awarded by the jury or submitting to a new trial.

Question 107

Are cross-claims ever compulsory?

Answer 107

NO

Question 108

Can you get federal questions jurisdiction from anticipating a defendants defense under a federal law?

Answer 108

NO

Question 109

When may a a court may grant an ex parte temporary restraining order without notice of the hearing to the adverse party?

Answer 109

if the moving party does the following: (i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition; (ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and (iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.

Question 110

When may a defendant implied a non-party?

Answer 110

A defending party may implead a nonparty, but only if the nonparty is or may be liable to her for any part of a judgment that the plaintiff may recover against her.

Question 111

If a party fails to provide discovery or provides incomplete discovery, including disclosures and answers to interrogatories and deposition questions, what may the other party due to get answers

Answer 111

The other party may move to compel discovery. However, a motion to compel must certify that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention. The certification (and an actual attempt at resolving the discovery dispute without court intervention) is a prerequisite to an award of reasonable expenses (which includes attorneys’ fees).

Question 112

If the opposing party asks a leading question in deposition and the other party fails to object at the time, may it be read into the record at trial?

Answer 112

Yes. The opposing party should have objected on the record during deposition to prevent it from making its way into the court.

Question 113

Can a case be dismissed after the defendant files an answer?

Answer 113

Yes, BUT action may be dismissed only by a stipulation signed by all parties or by an order of the court.

Question 114

Under Rule 24, when may a nonparty intervene in an action as a matter of right?

Answer 114

• First, a nonparty may intervene when it has an unconditional right to do so by a federal statute.
• Second, a nonparty may intervene if (i) it has an interest in the property or transaction the is the subject matter of the action; (ii) the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest; and (iii) the nonparty’s interest is not adequately protected by an existing party in the action.

Question 115

A husband and wife were traveling in a car with the wife driving when they were in an accident with a truck. The accident occurred in a jurisdiction that followed the traditional rule as to joint and several liability among tortfeasors. The husband sued the truck driver in federal district court. The truck driver, contending that the wife was an indispensable party, filed a motion to dismiss the action because the husband did not join his wife as a party to the action.

How should the court rule on the truck driver’s motion?

Answer 115

The court should deny the truck driver’s motion because the wife is not “needed for just adjudication.” When deciding whether an absentee party is indispensable, the court considers a number of factors. However, the Supreme Court has held that a joint tortfeasor subject to joint and several liability is not a person needed for just adjudication. [Temple v. Synthes Corp., 498 U.S. 5 (1990)] Because the wife here is a joint tortfeasor subject to joint and several liability, she is not an indispensable party in this case.

Question 116

Timeline for moving for relief from judgment after fraud, misrepresentation, or other misconduct.

Answer 116

A court may relieve a party from a final judgment or order based on fraud, misrepresentation, or other misconduct of an adverse party, and such a motion must be made within a reasonable time not to exceed one year.

Question 117

A utility company constructed a building costing approximately $2 million that encroached on a rancher’s property. The rancher is suing the company in federal district court to force the company to remove the office building. In the same action, the rancher is asking for $200,000 in damages incurred because of the trespass. The court has diversity of citizenship jurisdiction.

Is the company entitled to a jury trial?

Answer 117

The company is entitled to a jury trial only for issues involving the trespass action. In this case, both legal and equitable issues exist. The defendant is entitled to a jury trial on the legal issues in the case, even though the equitable issue of whether an injunction mandating removal of the building should be issued clearly predominates.

Question 118

A restaurant owner in State A bought two large freezers from a manufacturer of commercial refrigeration equipment with its principal place of business in State B. Within one week and after being fully stocked with meat, one of the freezers broke down. The restaurant owner filed a state-based products liability action against the manufacturer in federal court in State A, and included a demand for a jury trial. Under the law in State A, jury verdicts do not need to be unanimous, but the Federal Rules of Civil Procedure require jury verdicts to be unanimous.

At trial, the restaurant owner makes a motion asking the court to apply the State A law.

How should the court rule on the motion?

Answer 118

The court should deny the motion. Under the Erie doctrine, when a state law-based claim is brought in federal court based on diversity of citizenship, the federal court generally applies the substantive law of the state in which it is sitting. However, where a specific federal statute or the Federal Rules of Civil Procedure are on point, the federal court must apply federal procedural law as long as the federal rule is valid. Under the Rules Enabling Act, a Federal Rule is valid if it deals with “practice or procedure” and does not “abridge, enlarge, or modify” a substantive right. Here, there is a specific federal procedural rule that is on point [Fed. R. Civ. P. 48], which requires jury verdicts to be unanimous, unless the parties agree otherwise. Since there is no evidence of agreement, the federal procedural rule will apply, and the motion should be denied.

Question 119

The passenger in a bus was injured when the bus hit a concrete divider on the highway. The passenger sued the bus company in federal court for negligence. . The case went to trial, and the jury found that the bus company was in fact negligent, awarding the plaintiff $500,000. Judgment was entered on August 5. On August 14, the defendant filed a motion for a new trial. On August 22, the plaintiff filed to enforce the judgment. The court has not issued any orders since the final judgment.

May the plaintiff enforce the judgment?

Answer 119

Absent a court order, no execution on judgments is allowed for 30 days after entry except for injunctions or receiverships, which are not held up unless otherwise ordered by a court.

Question 120

A college student from State A hit another car driven by a resident from State B when the college student was traveling through State B. The State B driver brought an action in State B state court against the State A college student, who has limited financial resources. The college student filed a motion to dismiss, claiming the State B court lacks personal jurisdiction.

What is the best argument to support the college student’s motion to dismiss?

Answer 120

The best argument the college student has to defend a motion to dismiss for lack of personal jurisdiction is to argue that the fairness prong of the constitutional minimum contacts test is not met. In addition to sufficient minimum contacts with the forum state, personal jurisdiction must not offend “traditional notions of fair play and substantial justice.” The Supreme Court in International Shoe listed several factors relevant to assess the fairness factor, including the burden on the defendant in terms of convenience in defending the action. Here, the best argument out of the four choices listed is that it would be unfair, inconvenient, and highly unreasonable for a college student from State A with limited financial resources to defend the action in State B. Note that this still may be a losing argument, as this argument will not prevail unless the burden to the defendant is “so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent.”

Question 121

What instrument do you use to request documents/records from a third party?

Answer 121

A party may serve on a nonparty a subpoena that compels the nonparty to produce physical material, including documents and electronically stored information, relevant to the pending action.

Note: a “request for production” is used to request documents from parties

Question 122

In a drug raid, police in a city searched 25 apartments selected at random in a 300-unit housing project. In a class action approved by the federal court, the 25 tenants sued the city for violation of their constitutional rights. The tenant named as class representative gave notice to all unnamed class members, including another tenant who decided not to opt out. The class action was then certified as a “common question” type. After negotiating with the class representative, the city police agreed to pay each tenant $500 and to conduct no further raids without proper warrants. The representative and the city signed a settlement agreement and a stipulation of dismissal of the class action. The other tenant objects to the amount of damages he is to receive and would rather opt out now and proceed on his own.

May the tenant opt out now?

Answer 122

The tenant may opt out if the court allows class members a second opportunity to opt out. In a “common question” class action, a judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out. [Fed. R. Civ. P. 23(e)]

Question 123

scope of cross examination generally

Answer 123

The scope of cross-examination is generally limited to: (i) matters brought up on direct examination; and (ii) matters concerning the witness’s credibility (i.e., impeachment).

Question 124

A mechanic sued his former employer in federal court, claiming that the employer had discharged him because of his age in violation of federal law. The employer answered, denying the claims and promptly moving for summary judgment. In support of the motion, the employer attached the mechanic’s employment evaluations for the past three years, which rated his skills and performance as poor and culminated in a recommendation for his discharge.

What is the mechanic’s best argument to defeat the summary judgment motion?

Answer 124

If the mechanic (the nonmovant) shows by affidavit or declaration that he cannot present facts essential to justify his opposition to the summary judgment motion, Rule 56(d) authorizes him to ask the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery. The employer moved for summary judgment right after answering and before any discovery. That timing would support defeating the summary judgment motion at this time.

Question 125

An individual investor purchased stock through a company’s stock offering. When the price of the stock plummeted, the investor sued the company in a state court in State A, claiming that the company’s offering materials had fraudulently induced him to purchase the stock and seeking $25,000 in damages.

A university that had purchased the company’s stock through the same offering sued the company in federal court in State B, claiming that the offering materials violated federal securities laws and seeking $1 million in damages.

The individual investor’s suit proceeded to trial. The state court ruled that the company’s offering materials contained false information and awarded the investor a $25,000 judgment. The university immediately moved for partial summary judgment in its federal action against the company, arguing that the state court judgment bound the federal court on the issue of whether the company’s offering materials contained false information.

Neither State A nor State B permits nonmutual issue preclusion.

Should the court grant the university’s motion?

Answer 125

No because State A does not permit nonmutual issue preclusion.

Generally speaking, when dealing with the preclusive effect of a judgment, the recognizing court should not give a judgment any greater effect than the rendering state would. (When “case one” has been decided in state court, the court in case two generally will apply the claim or issue preclusion of the jurisdiction that decided case one.) Here, the rendering state, State A, does not recognize nonmutual collateral estoppel, so a federal court sitting in State B should not give the judgment issue preclusive effect.

Question 126

A small commercial airplane crashed in State A. The passengers and pilot, all citizens of State B, were killed in the crash. The airline that owned and operated the airplane is incorporated and has its maintenance facilities and principal place of business in State C.

One day before the statute of limitations on their claims would have run, the estates of the pilot and each of the passengers filed a wrongful death action against the airline in federal court in State A. The airline was served one week later and wants to prevent the State A federal court from hearing the action.

Which of the following motions is most likely to accomplish the airline’s goal?

Answer 126

A motion to transfer the action to a federal court in State C.

The best approach to answer this question is to use a process of elimination. In order to hear a case, a federal court must have subject matter jurisdiction and personal jurisdiction over the defendant, and venue must be proper. However, even if venue is proper, the court may transfer the case to another federal court, in the interests of justice, for the convenience of the parties and witnesses. Venue is proper in the judicial district in which a defendant resides, if all defendants reside in the same state, and in any judicial district where a substantial part of the acts or omissions took place or where a substantial part of the property that is the subject of the litigation is located. Here, the airplane crashed in State A, so a substantial part of the acts or omissions took place there.

NOTE MISTAKE: Since the airplane crashed in State A, the airline likely committed a tort in State A, thus giving a State A court personal jurisdiction over the defendant airline under the state’s long arm statute. Thus, a motion to dismiss on the basis of a lack of personal jurisdiction is unlikely to be successful.

Question 127

the two dismissal rule

Answer 127

A dismissal by notice is without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim, in which case the dismissal by notice is with prejudice. (This is known as the “two dismissal rule.”)

Question 128

A construction contractor brought a breach of contract claim in federal court against a homeowner who had hired the contractor to build an apartment over an existing garage. The action turned on the scope of the work covered by the contract. The contractor and the homeowner were the only witnesses at the bench trial, and they strongly disagreed about the scope of the work. At the end of the trial, the judge stated findings of fact on the record but never issued a written opinion. Neither party objected to the findings. The judge found in favor of the homeowner, and the contractor appealed.

Is the appellate court likely to overturn the findings?

Answer 128

In a bench trial, the judge acts as the fact-finder, and the appellate court will give deference to the judge’s findings of fact. There are no facts in the question to raise any question about the judge’s findings, and he must have found the homeowner to be the more credible witness.

Question 129

A patient domiciled in State A sued a surgeon domiciled in State B in a federal court in State A, alleging claims for malpractice. The surgeon moved to dismiss the action for lack of personal jurisdiction. The court denied the motion and set discovery cutoff and trial dates.

The surgeon has appealed the denial of the motion.

Should the appellate court hear the merits of the surgeon’s appeal?

Answer 129

With certain exceptions by rule or statute, only final judgments may be appealed. A final judgment is one that disposes of the whole case on its merits. Since the case was still pending after the denial of a motion to dismiss on the basis of a lack of personal jurisdiction, the judgment here was not a final judgment and thus was not appealable.

Question 130

Is a defendant entitled to be present at jury selection?

Answer 130

Yes. Jury selection is a critical stage of trial at which the defendant is entitled to be present.

Question 131

A single man with a life insurance policy that pays his designated beneficiary $70,000 upon his death was killed in a car accident. His former girlfriend, a resident of State A, was named as beneficiary, but his mother, a resident of State B, also filed a claim for the life insurance proceeds. The insurance company, a State C corporation having its principal place of business in State B, filed an interpleader action in federal court to protect itself from potentially multiple and inconsistent claims.

May the insurance company bring the interpleader action in federal court?

Answer 131

Yes, because the amount in controversy is $500 or more, and both claimants are diverse from one another.

The insurance company can bring the interpleader action in federal court. The Federal Interpleader Act provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue. Under the act, interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required. Here, the mother is a State B resident, and the former girlfriend is a State A resident. Thus, both claimants are diverse from one another, and the $70,000 amount in controversy exceeds the $500 minimum.

Question 132

A homeowner from State A hired a contractor from State B to build a vacation home for her in State C. The parties signed the contract in State A. The contractor breached the contract, and the homeowner sued the contractor in a court of State A, seeking damages of $100,000. The contractor removed the case to the federal court for State A. The homeowner promptly moved to remand the case to state court, arguing that venue was improper.

Which of the following facts is most relevant to the court’s decision on the homeowner’s motion?

Answer 132

The homeowner commenced the action in a State A court.

When a case is removed from state court to federal court, venue is set in the federal district court that embraces the state court in which the action was pending, making the federal district court of State A the only appropriate venue choice.