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Civil Procedure Flashcards

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1
Q

SMJ

A

Power over the case

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2
Q

Personal Jurisdiction

A

Power over the person

Test:
Does D have sufficient contacts with the forum so that exercise of PJ is fair and reasonable?

Mechanical Test:
1. PJ must fall within a statute
2. PJ must satisfy the Constitution

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3
Q

Personal Jurisdiction: Statute requirement

A

Long Arm Statutes
Allow states to acquire PJ over those who perform or do certain things in the state
Only have to satisfy constitution

Laundry List Long Arm Statutes
Give specific situations where the state has PJ

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4
Q

Personal Jurisdiction: Constitutional Analysis

A

Factors:

Contact
Relatedness
Fairness

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5
Q

Personal Jurisdiction: Constitutional Analysis: Contact

A

Purposeful availment
Voluntary act targeting forum
Don’t need physical presence, causing an effect in the forum
Maybe even maintaining a website

Foreseeability
Foreseeable D could get sued in that forum

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6
Q

Personal Jurisdiction: Constitutional Analysis: Relatedness

A

Does cause of action arise from or relate to D’s contacts with the forum?
Broader than actual causal connection
D’s contact caused harm to P

If unclear:
Substantial contact in forum, then it must relate to the contact

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7
Q

Personal Jurisdiction: Constitutional Analysis: Fairness

A

ONLY for specific PJ, NOT general

Three factors:
Burden on defendant and witnesses
—Severe disadvantage
—Wealth not determinative
State’s interest
Plaintiff’s interest
—Injured? Can’t leave?

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8
Q

Specific PJ

A

If contacts related to case, skip relatedness and go to reasonableness

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9
Q

General PJ

A

Need “general” jdx (PJ over any cause of action, related or unrelated)

To get:
D must be at home in the forum
—Human is “at home” in state of domicile
Served with process while in the state (tag jdx)

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10
Q

PJ for Corporations

A

State of incorporation, and
State of principal place of business

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11
Q

Overall PJ Summary

A
  1. Statute, or general pj?
  2. Constitutional
    Contact
    —Purposeful availment and foreseeability
    Relatedness
    —Arises from or relates to cause of action
    —Specific jdx if test met
    Fairness
    —Step only applies to specific jdx
    —Look to burden and convenience, state’s interest, plaintiff’s interest
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12
Q

Process (2 documents)

A

Summons
Copy of complaint

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13
Q

Who can serve process and when

A

Any person who is at least 18
Non-party to the case
No court appointment necessary

When:
In US: 90 days within filing of complaint

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14
Q

Options for Service on an individual

A

Personal service (in-hand delivery)
Substituted service at D’s usual abode on someone of suitable age and discretion who resides there
—-Must be home usually
—-Summer home butler, maybe if residing there during summer
Service on agent
State law methods

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15
Q

Service on a corporation

A

On officer or agent
State law methods

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16
Q

Service on minor or incompetent person

A

Use state law method where service is made

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17
Q

Serving in foreign country

A

A method allowed by international agreement

If not, other options:
As directed by the American court
Method allowed by foreign country’s law
Method directed by a foreign official in response to a letter of request
Personal service in foreign country, unless prohibited by foreign country
Mail sent by the clerk of the american court, signed receipt needed, unless prohibited by foreign country

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18
Q

Waiver of SoP

A

A defendant can waive service of process.

To request this waiver, the plaintiff mails the defendant a notice and request to waive service.

The plaintiff must include a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form
If the defendant executes and mails the waiver form to the plaintiff within 30 days (60 days if the defendant is outside the U.S.), she waives service of process. Waiver can be used for individuals and entities.

Effects
D does not waive defenses by waiving service
Effective as of the date the waiver is filed in court by P

Why waive
D pays for service as penalty for not waiving (unless good cause)

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19
Q

Proving SoP

A

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).
The failure to file this report does not affect the validity of service.

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20
Q

Where is SoP valid

A

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 whether we have PJ is the same for federal court as it is for state court.

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21
Q

Immunity from SoP

A

D is immune from process while appearing in another case

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22
Q

Other Docs

A

Other documents, such as an answer, other pleadings, motions, and discovery, are “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 to a pro se party, that is, someone who is proceeding without a lawyer. Can you serve these documents by email? Yes, if the parties agree.
Suppose we mail discovery requests to the other party. Service is deemed complete when they are mailed. As we will learn later, the receiving party generally has 30 days in which to respond to the requests, but here three days are added to the period because they are mailed.

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23
Q

Subject Matter Jurisdiction Overview

A

Fed courts have limited SMJ, states have general SMJ

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24
Q

Federal SMJ

A

Two main bases:
Federal question
Diversity of citizenship

SMJ cannot be waived

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25
Q

Diversity of Citizenship Requirements

A

Right kind of litigants (parties)
Amount in controversy exceeds $75k

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26
Q

Right kind of litigants (parties)

A

Citizens of different US states, or
P in US state and D in foreign country (alienage jdx)
No SMJ if any P is citizen of same state as any D (complete diversity)
Non-US citizen cannot be a citizen
Ie. can invoke alienage but cannot invoke diversity
JDX withdrawn if that permanent resident is domiciled in the same state as an adverse party
Citizenship of a natural person
Domicile, and only one state

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27
Q

Amount in controversy exceeds $75k

A

NEEDS TO BE even a penny over, EXCEEDS

Calculating AIC:
Interest wrinkle:
Prejudgment interest not included
Interest as part of claim included

Good faith allegation by P usually controls unless to a legal certainty $75k+ is not possible

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28
Q

AIC Rule 1 (Single P v Single D)

A

A single P may aggregate all claims against a single D
Don’t need to be related claims
Multiple P’s cannot do this

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29
Q

AIC Rule 2 (Joint Claims)

A

Look to total value of claim for joint claim
Not aggregation; not adding anything

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30
Q

AIC Rule 3 (Equitable Relief)

A

AIC is determined by looking at value of relief to plaintiff or defendant
(ie. injunction increased home value by 75k, or costs D 75k to remedy)

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31
Q

How to Change Domicile

A

Physical presence in new place AND
Subjective intent to make new place domicile for foreseeable future
Domicile notes:
DC is a state
Remember diversity is tested when the case is filed

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32
Q

Citizenship of Corporation

A

Any state or country where incorporated, and
One state or country where principal place of business (PPB) is
Where the corporation’s managers direct, coordinate, and control the business (nerve center, usually headquarters)

Unincorporated association
Takes on citizenship of all members
General and limited partners

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33
Q

Decedent Citizenship

A

Representative of decedent, minor, or incompetent takes on citizenship of person represented

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34
Q

Declining Diversity SMJ

A

Federal courts decline actions for:
divorce,
alimony,
child custody, and
Probate

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35
Q

Collusive Creation of Diversity

A

Sham transactions to create diversity will be ignored
But: Genuine voluntary changes of citizenship before action commenced creates diversity even if that was motive

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36
Q

Federal Question Jdx

A

Claim arises from federal law
Determined by well pleaded complaint
Not enough to just raise issue
Claim itself must arise under federal law
Ask: Is P enforcing a federal right?

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37
Q

Removal

A

Procedure allowing defendant to move case from state court to federal court
Court will remand (send back to state court) if removal improper

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38
Q

Removal: Standard

A

Case filed in state court may be removed to federal court if it could have been originally filed in federal court

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39
Q

Removal: Notice of Removal

A

Notice of Removal:
Grounds of removal stated
Court permission not required
Served on adverse parties
File in federal court, copy in state court

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40
Q

Removal: Timing

A

D must remove no later than 30 days after service of paper showing case is removable
Usually service of process (which includes copy of the complaint)

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41
Q

Removal: Who Joins in Removal

A

All D’s served with process must join
Earlier-served D may join later-served D’s removal even if 30-day period expired

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42
Q

Removal: Who can remove

A

Plaintiff’s can never remove
Only Ds

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43
Q

Removal: What Cases can be removed

A

Removal starting point is always SMJ
Limits on removal based on diversity:
In-state d exception: Any D is citizen of forum state
One-year time limit for removal
If improperly removed, will be remanded not rejected

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44
Q

Removal: 30-day and 1 year rules

A

30 days to remove from time it becomes removable
Includes when non-diverse D leaves case
No removal more than 1 year after case filed (usually)
Exception: One year restriction does not apply if D originally joined to prevent removal

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45
Q

Removal: Venue

A

Case must be removed to federal court embracing the state court
Doesn’t matter if not proper venue under venue statute

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46
Q

Removal: Remand

A

P must move to remand within 30 days if defect other than lack of SMJ
30 day limit does not apply if federal court has SMJ
Lack of SMJ is never waived
Objection can be raised at any time

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47
Q

SMJ – Supplemental Jurisdiction

A

Must have a case already in federal court

Step 1: Look for independent SMJ in additional claim
No need for supplemental if claim SMJ over additional claim
Step 2: Supplemental? Test:
Must arise from common nucleus of operative fact as claim in existing federal court case
Same transaction or occurrence always satisfies common nucleus test

Note: P’s cannot invoke supplemental jurisdiction in diversity cases
Exception: multiple P’s, and claim by one of them does not meet the AIC requirement
Then can check for supp jdx with test

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48
Q

Full test for Supp JDX

A

Step 1: Look for SMJ in additional claim
Step 2: If none, check for common nucleus of operative fact (TOSTO) with existing federal court claim
Step 3: Check for limit on P’s in diversity
Fed q: no limits
P’s can’t use supplemental except for below-limit claim
Step 4: Court can decline supp jdx
Usually if claim on which federal smj is based is dismissed early

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49
Q

Erie Doctrine

A

Step 1: Is there a federal law on point that directly conflicts with state law?
If so, you apply that federal law as long as it’s valid (supremacy clause)
If it’s FRCP, it’s presumptively valid if arguably procedural

Step 2: If no federal law on point, federal judge must apply state law if issue is substantive and not applicable to federal law
Clearly substantive:
Conflict or choice of law rules
Elements of a claim or defense
Statutes of limitation
Tolling of statutes of limitations
Standard of granting a new trial because the jury’s award was excessive or inadequate

Step 3: Determine whether issue is substantive if not one of the above 5
Outcome determinative (will this affect the outcome of the case?)
Balance interest factors (either system have strong interest in rule applied?)
Avoid forum shopping
Eerie says there’s no general federal common law
Except:
International relations, state disputes, etc.
No role for state law

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50
Q

Venue

A

Exactly where to bring the claim

Two possible venues:
Any district where all D’s reside (residential venue) OR
Where substantial part of claim arose or substantial part of property is located (transactional venue)

Does not apply if removed case, applies to initial filing

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51
Q

Venue: Residential nuance

A

Venue proper in any district where D resides if all Ds reside within state
Ds have to reside in same state for residential venue

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52
Q

Venue: Transactional Venue

A

Substantial part of claim must arise in the district
“Substantial part” =/= all
More than 1 district can satisfy requirement

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53
Q

Venue: Miscellaneous

A

Does not matter where Ps reside
If Ds reside outside US, any federal district (unless one inside)

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54
Q

Venue: Resides

A

Human resides in federal district where they are domiciled
Businesses reside in all districts where subject to PJ

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55
Q

Venue: Transfer

A

Case goes from one trial court in a judicial system to another within the same judicial system
Ie. cant transfer from fed to state, outside US, etc
Venue and PJ must be proper with transfer without waiving
Exception: Can transfer to any venue if all parties consent and court finds cause for transfer

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56
Q

Transfer from a Proper Venue

A

Convenience of the parties and witnesses, and in the interest of justice
Burden always on people seeking transfer
Will consider public and private factors
Law, convenience for witnesses and evidences, etc
Effect on choice of law
Transferee court usually must apply choice of law rules of transferor court
Forum Selection Clause
Provision in contract by which parties agree where disputes will be litigated
Motion to transfer used in this case if P sues elsewhere, but still must be proper
Key:
Federal law enforces these clauses if not unreasonable
Unless public interest factors say otherwise (unlikely)
Transferee court applies own choice of law rules

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57
Q

Transfer (or Dismissal) for Improper Venue

A

If venue improper, court will:
Transfer if in interest of justice or
Dismiss

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58
Q

Forum Non Conveniens

A

Center of gravity is elsewhere in another judicial system
Stay or dismissal (transfer not possible)
Court may impose conditions on D (ie. waive pj for other court)

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59
Q

Complaint Requires

A

Grounds of SMJ
—Short and plain statement showing P is entitled to relief
—Demand for relief
—Note: No need for showing PJ or venue
Plaintiff must plead sufficient facts to support a plausible claim
—Plausible is determined by judge’s experience and common sense
—D can challenge with 12(b)(6)

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60
Q

Matters requiring more detail or specificity in complaint

A

Fraud
Mistake
Special damages

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61
Q

Complaint: Response

A

D must respond by motion or answer within 21 days (or 60 days if D waived service)

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62
Q

Motions

A

Issues of form:
Rule 12(e)
-Motion for more definite statement
-Complaint is so vague that more is needed

Rule 12(f)
-Motion to strike
—Remove redundant or immaterial things in a pleading
—Both parties may move to strike

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63
Q

12(b) defenses

A

Waivable defenses (Waived if not addressed in first rule 12 response)
—Lack of personal jdx
—Improper venue
—Improper Process
—Improper service of process
Can be raised later
—Failure to state a claim
—Failure to join indispensable party
—Objection to SMJ
Denied motion to dismiss, serve answer within 14 days

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64
Q

Answer

A

Response to allegations in complaint
—Admit
—Deny
—Lack of sufficient information
Failure to deny allegation is an admission
—EXCEPT: amount of damages
Waived if not asserted in answer
—Statute of limitations, res judicata, etc
Court may treat lack of affirmative defenses as waiver

Affirmative defenses
—P need not respond

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65
Q

Amended Pleadings: Is there a right to amend?

A

By Plaintiff
—The plaintiff has a right to amend her complaint once no later than 21 days after the defendant serves her first Rule 12 response.

By Defendant
—The defendant has a right to amend his answer once no later than 21 days of serving it

Amendments After Time to Amend Expires
—With court permission if justice so requires
—Allowed unless delayed too long, will prejudice other party, or would be futile

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66
Q

Variance

A

Can only come up at trial
Variance comes up when the evidence at trial does not match what was pleaded.
If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.

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67
Q

Amended Pleading Relates Back

A

Amended pleading treated as if filed on date that original pleading filed
—So long as it concerns same TOSTO
Avoids statute of limitations problem

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68
Q

Pleading Amendment Changing Defendant Relates back IF:

A

Amendment concerns same TOSTO
Defendant had knowledge of case so won’t be prejudiced by amendment
Defendant knew or should have known P made a mistake and should have been named
Only applies when P sues wrong D but right D knew about it, statute runs

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69
Q

Supplemental Pleadings

A

Occurred after pleading is filed
Discretion of the court for allowing in
—Motion for leave to file a supplemental pleading, not an amendment

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70
Q

Signature Requirement: Rule 11 Certification

A

Certifying that to the best of your knowledge and belief, after reasonable inquiry, these things are true:
—Paper not presented for improper purpose
—Legal contentions warranted by law or good argument law should be changed
—Factual contentions and denials have evidentiary support
Recertify every time you advance the argument

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71
Q

Sanctions

A

Sanctions imposed for breaking this, law firm usually jointly liable
Court may raise Rule 11 violations sua sponte
Can make order to show cause before sanctions
Usually non-monetary sanctions (classes, etc)
Monetary sanctions paid to court, not D usually

Safe Harbor Provision:
Party seeking sanctions must serve motion on opponent
Party in violation has 21 days to fix

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72
Q

Joinder Requirements

A

How big the case gets, defines scope of the case

Must be authorized by rule
Must be SMJ

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73
Q

Joinder: By Plaintiff

A

P may join as many claims as P has against D
Must be SMJ
—Note: Can aggregate claims to meet AIC

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74
Q

Joinder by Multiple Plaintiffs or Defendants

A

Can join multiple Ps or Ds if:
Arise from same TOSTO and
Raise a common question of law or fact

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75
Q

Joinder: Necessary and Indispensable Parties

A
  1. Is absentee (nonparty) necessary/required?
  2. Can absentee be joined?
  3. If not, can case proceed without absentee?
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76
Q

Joinder: Necessary Parties Tests

A

Three tests:
Can complete relief be accorded among existing parties?
Will absentee’s interest be harmed?
Will D’s be subject to multiple or inconsistent liability?

NOTE: Joint tortfeasors not necessary

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77
Q

Joinder: Can Absentee be Joined?

A

Feasible if:
PJ over absentee
Federal SMJ over claim by or against absentee

78
Q

Joinder: Can proceed without absentee?

A

If not, can proceed?

If absentee cannot be joined, court must proceed or dismiss entire case

Court considers whether:
Alternative forum available
Actual harm to absentee is likely
Court can shape relief to avoid any harm

If court dismisses, then the absentee becomes an indispensable party

79
Q

Joinder by Defendant: Counterclaim

A

Any claim back against complaining party–usually by D against P
Response required within 21 days of service by P

80
Q

Compulsory Counterclaim

A

Arises from same TOSTO
Use it or lose it
—Only if required to answer

81
Q

Permissive Counterclaim

A

Does not arise from same TOSTO
Not lost – can sue in separate case
SMJ is often the issue, must have it for fed
—Then maybe supplemental jdx

82
Q

Crossclaim

A

Claim against co-party arising from same transaction or occurrence as underlying case
NEVER COMPULSORY
Need SMJ
No fed? Then maybe supplemental (common nucleus by definition, but watch for limitation on diversity cases for supplemental)

NOTE:
Claim BACK has to be counterclaim, as now opposing parties

83
Q

Impleader (3P claim)

A

Brings in new party
For indemnity or contribution
Ie. shifts liability to the 3PD
Indemnity shifts liability for full claim
Contribution shifts pro rata liability, must cover pro rata portion of the claim

84
Q

Impleader (3P claim): Requirement

A

Must:
File 3P complaint
Must serve, have PJ, etc
Right to implead within 14 days of serving answer, but then requires court permission

85
Q

Plaintiff claims against 3PD

A

Both can make claims against each other as long as under same TOSTO
Still need SMJ
—Remember limit on supp jdx only for Ps, so no worries here for 3PD

86
Q

Intervention

A

Non-party, absentee, uses intervention to bring self into case as either P or D
Court can realign intervening party if they came in on the wrong side
Must be timely

87
Q

Intervention: Of Right

A

If absentees interest may be harmed without intervention, and
Interest not adequately represented by current parties
—-Same test for test B for necessary parties

88
Q

Permissive

A

Open ended
Absentees claim or defense has one common question of law or fact, intervention is permissive
—Discretionary to the court
—Usually allowed without any delay or prejudice
—MUST HAVE SMJ
——–Don’t forget Supplemental, and limitations for P intervenor

89
Q

Interpleader

A

a way for a party who holds property (a stakeholder) to initiate a suit between all claimants, who are parties claiming a right to that property. An interpleader allows the stakeholder to bring all claimants into the same action, instead of litigating against claimants in separate actions.

90
Q

Class Actions

A

Four prerequisites:
Numerosity
—Too many for separate suits
Commonality
—One stroke decides for all
Typicality
—Class reps claims typical of class members
Adequate representative
—Fairly adequately represents the class

91
Q

Three types of class actions

A

Type 1 – Prejudice
Class treatment necessary to prevent harm or prejudice
Very rare

Type 2 – Injunctive or Declaratory Relief
Defendant treated class members alike
Cannot seek damages
More likely on exam

Type 3 – Common Questions or Damages
Common questions predominate over individual ones
Class action is superior method for handling dispute
BIG ON BAR

92
Q

Courts must certify class action by:

A

Court defines class, claims, issues and defenses
Court appoints counsel
Certification is immediately appealable

93
Q

Class Actions: Notice to Class

A

In a Type 3 class action, 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, paid for by the rep, tells the class members various things, including that they:
—Can opt out;
—Will be bound by the judgment if they don’t opt out; and
—Can enter a separate appearance through counsel
This notice is not required in Type 1 or Type 2 class actions

94
Q

Class Actions: Opting Out

A

There is no right to opt out of a Type 1 or Type 2 class action.
Can only opt out of Type 3

95
Q

Class Actions: Settlement of Class Action

A

The parties can settle or dismiss a certified class action only with court approval. And, in all three types, the court must give notice to the class members to get their feedback on whether the case should be settled or dismissed.

If it’s a Type 3 class, the court also might refuse to approve the settlement unless members are given a second chance to opt out

96
Q

Class Actions: SMJ in Class Actions

A

If the class action asserts rights under federal law, FQ jurisdiction may be used.
For diversity cases, only the citizenship of the class rep is considered, and her claim must exceed $75,000.
—That means that as long as the class rep’s claim meets the requirements of diversity, the class action may use diversity.

97
Q

Class Action Fairness Act

A

Special grant of SMJ
—Class = 100 members
—Any class member is diverse from D
—Aggregated claims exceed $5 million
Any D may remove
Local actions stay local
—Where most class members and D are in same region

98
Q

Discovery: Required initial disclosures

A

Names, numbers, addresses of people with discoverable information if might be used to support claims or defenses
Documents (ESI (electronically stored info), tangible things) if might be used to support claims or defenses
—That YOU want to use
—Must be in your control
Computation of damages
Insurance coverage

99
Q

Discovery: Required initial disclosures: Expert Witnesses

A

Consulting experts need not be disclosed absent exceptional circumstances
Testifying experts must be disclosed
Written report by expert must be disclosed
Draft reports and communication are protected work product

100
Q

Discovery: Required initial disclosures: Pretrial Disclosures

A

30 days before trial
Identities of witnesses
Documents
No surprises

101
Q

Discovery Tools

A

Must come after Rule 26(f) conference
—Only exception is request to produce
Paid by responding party usually

102
Q

Depositions

A

Live testimony of parties or non-parties, under oath, given in response to questions by counsel

103
Q

Depositions: Subpoenas or Notice of Deposition

A

Non-parties must be served with subpoena
Notice of Deposition enough for party

104
Q

Depositions: Subpoena Duces Tecum

A

Subpoena requiring deponent to bring material to deposition.

105
Q

Depositions: Non Party

A

Farthest they can be forced to travel is 100 miles from their home, absent consent

106
Q

Depositions: Businesses/Organization

A

Business gets notice, and designates proper person to be deposed

107
Q

Depositions: Limits

A

Unless court orders otherwise:
No more than 10 depositions
Cannot depose same person twice
Cannot exceed one 7-hour day

108
Q

Depositions: Use

A

Impeach witnesses for inconsistent statements
Use against adversarial party for any purpose

109
Q

Discovery: Interrogatories

A

Written questions to be answered in writing under oath
—Only to parties
—Limited to 25 (unless court order or stipulation)
—Must answer in 30 days
Based on reasonably available information (not just recollection)
Legal contention rogs are fine

110
Q

Discovery: Request to Produce

A

A request to produce asks a party to make available for review and copying documents or things, including electronically stored information (“ESI”), or to permit entry on designated property to inspect, measure, etc.

ESI must be produced in the form that the requesting party specifies, but the responding party may object.

The disclosing party must respond to the request in writing within 30 days of service, stating that the material will be produced or asserting objections.

Only parties can be sent a request to produce, but a nonparty can be served with a subpoena to require her to disclose the same types of information.

111
Q

Discovery: Medical Exam

A

Process
—Court order required
—Parties only
—Health must be in controversy
—Good cause
Medical examiner writes report and examined can ask for report
—If so, then must release all reports from own doctors on medical procedures or conditions

112
Q

Discovery: Request for Admission

A

Written request asking opponent to admit facts
—Must respond within 30 days
—Response: deny, deny knowledge, object, or admit
—Reasonable inquiry must be made before answering

113
Q

Discovery: Signature Requirement

A

Signed under oath
Rule 11 doesn’t apply, but similar requirement

114
Q

Discovery: Supplement Response to Discovery

A

If new facts come to light after responding to discovery that make a required disclosure, interrogatory, request for production, or request for admission incomplete or incorrect, the party must supplement her response to discovery. This is a self-policing obligation.

115
Q

Scope of Discovery

A

Party can discover anything:
relevant to claim or defense and
proportional to needs of case

Need not be admissible

116
Q

Protective Orders (ESI)

A

Defendant can move for protective order or object to discovery of ESI
Undue costs are considerations for ESI
Court may allocate costs if P shows good cause to obtain despite costs

117
Q

Privilege Objections

A

Party can object on the basis of evidentiary privilege

118
Q

Work Product

A

Material prepared “in anticipation of litigation”
Does not have to be attorney, any party or rep of party

119
Q

Discovery of Work Product

A

Must show:
Substantial need and
Undue hardship without
Opinion work product cannot be discovered though (mental impressions, conclusions or legal theories)

120
Q

Withholding Discovery Requirements

A

Must claim protection expressly
Must prepare privilege log
—Describes materials in detail
—Enough detail to allow judge to determine whether privileged

121
Q

Inadvertent Disclosure What to Do

A

Notify other party promptly
The other party then must return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.

122
Q

Enforcing Discovery: Protective Order

A

The party must certify that she tried in good faith to resolve the issue without court involvement; that is, she asked the other side to “meet and confer.”

Must try to work out without court involvement

Court can deny and order discovery, limit discovery, or permit discovery within terms

123
Q

Enforcing Discovery: Less than a Full Response

A

When a producing party responds, but not fully (10.7.2. above), sanctions are a two-step process:

The requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the unproduced material, etc., plus costs (including attorneys’ fees) of bringing the motion.

If the producing party violates the order compelling her to answer, the court can enter “merits” sanctions, along with costs and attorneys’ fees for bringing the motion. The producing party could be held in contempt for violating a court order (except there is no contempt for refusal to submit to a medical exam).

124
Q

Enforcing Discovery: No Response

A

If the producing party fails to respond at all, the court can enter “merits” sanctions plus costs (and attorneys’ fees for the motion). There is no need to get an order compelling answers; you go directly to “merits” sanctions.

125
Q

Enforcing Discovery: Sanctions

A

Partial response:
Requesting party moves for an order compelling discovery
Opposing party fails to respond to court order
Merits sanctions including contempt
But no contempt for refusal of medical exam

Total failure to respond
Enter merits sanctions right away, and costs and attorneys fees

126
Q

Merits sanctions

A

Establishment order
Strike claims or pleadings
Disallow evidence
Dismissal or default

127
Q

Failure to Preserve ESI

A

Court orders measures to cure harm
Can court enter “merits” sanctions?
—Only if the party who lost the ESI acted with intent to deprive the other party of the ESI.
—The court also may enter a default against the defendant when her conduct was in bad faith.

128
Q

Preliminary injunction

A

preserves the status quo until trial

Must show:
Irreparable harm
Likely to win on the merits
Balance of hardships
Public interest

Describe with specificity
May be appealed as of right

129
Q

TRO

A

preserves status quo until preliminary injunction

A TRO may be issued “ex parte,” which means that a court has done something without giving notice to the other party. The court will issue a TRO ex parte only if:

The applicant files a paper under oath clearly showing that if the TRO is not issued, she will “suffer immediate and irreparable harm” if she must wait until the other side is heard.

The applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer (or why such notice should not be required in this case).

Must be specific, and state why issued, and why harm irreparable

130
Q

TRO timing

A

Cannot exceed 28 days (14 days, plus 14 day extension)
Treated like a preliminary injunction after 28 days

131
Q

Voluntary Dismissal Without Court Permission

A

P may withdraw case without court order if D has not filed answers or motion for summary judgment

132
Q

Voluntary Dismissal With Court Permission

A

P makes motion for voluntary dismissal
Court’s discretion to grant or deny
First voluntary is without prejudice
Second voluntary dismissal extinguishes claim

133
Q

Default

A

P may seek D’s default if D doesn’t respond to complaint within:
21 days after SoP
60 days if process waived
Not automatic
P must move for entry of default
D can respond late until default on record

134
Q

Default Judgment

A

Clerk can enter default judgment if:
D made no response (has not appeared)
Claim for sum certain
P gives affidavit of amount owed
D is not a minor or incompetent

Hearing and judge’s discretion if clerk can’t enter
Recovery limited by amount in complaint
Must be same kind of relief

135
Q

Motion to Dismiss for Failure to State a Claim

A

Rule 12(b)(6)
Court looks only to allegation of facts in complaint
Do these facts (if true) state a plausible claim?

136
Q

Motion for Summary Judgment (FRCP 56)

A

Summary judgment weeds out cases in which no trial is necessary.
The only reason to have a trial is to resolve a dispute of material fact.

137
Q

Motion for Summary Judgment: Standard

A

The party moving for summary judgment must show that:
There is no genuine dispute on a material fact; and
She is entitled to judgment as a matter of law.

If the standard is met, the court is not always required to grant the motion.
There may be some discretion to deny the motion (measured by an “abuse of discretion” standard on appeal).

138
Q

Motion for Summary Judgment: Timing

A

Any party can move for summary judgment no later than 30 days after close of discovery.

139
Q

Partial/summary adjudication

A

The motion can be for “partial” judgment— for example, as to liability—and the case can go to trial on damages.
Partial summary judgment is sometimes called summary adjudication.

140
Q

Matters Considered for summary adjudication

A

In a summary judgment motion, the court can look at evidence. The court views that evidence in the light most favorable to the nonmoving party. The parties proffer the evidence, usually (1) affidavits, (2) declarations, (3) deposition testimony, or (4) interrogatories

141
Q

summary judgment Ruling Delayed

A

Ruling on the summary judgment can be delayed if the party needs more time to respond

Must specify what evidence will be once acquired

142
Q

Pleadings not evidence

A

Cannot rely merely on complaint for evidence if there’s other evidence from opposing party

143
Q

Pleadings to Support Summary Judgment

A

Not considered evidence unless verified

Admissions
Ie. not denying allegation is evidence of admission

144
Q

Rule 26(f) Conference

A

at least 21 days before the court’s scheduling order, the parties “meet and confer” to discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information.
They must present to the court a detailed discovery plan no later than 14 days after the Rule 26(f) conference.

145
Q

Contents of Discovery Plan

A

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 (for example, deleted files), etc

Only request for production allowed prior to this

146
Q

Scheduling order

A

Roadmap of case to trial

147
Q

Pretrial Conferences

A

The court may hold “pretrial conferences” to oversee the case.

Final Pretrial Conference
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, witnesses, etc., so that there are no surprises at trial.

148
Q

Jury Trial

A

Determines facts and delivers verdict
A judge only trial is a bench trial

149
Q

Motion in Limine

A

Pretrial motion outside jury to decide on certain evidence admissibility

150
Q

Judge or Jury?

A

Actions at law → Jury
Actions in equity → Judge

Mixed suits →
Facts underlying damages tried first before jury
Then facts relating only to equity claim are tried to judge

151
Q

Demand for Jury

A

Must demand in writing
Within 14 days of last pleading showing jury triable issue

152
Q

Jury Selection

A

Called “voir dire”
Unlimited challenges for cause
Generally 3 peremptory challenges
—No reason
—Can’t be based on race or gender

153
Q

Number of Jurors

A

Minimum 6, max 12
—Unless stipulated otherwise
Verdict must be unanimous
—Unless stipulated otherwise

154
Q

Jury Instructions

A

Judge may hold off-the-record conference to discuss jury instructions
Objections to Jury Instructions

Judge must tell parties:
—what instructions it will give and
—what instructions were refused
Party must object on the record
And objection must be before jury charged

155
Q

3 Types of Verdict Forms

A

General: Who wins and what relief
Special: Jury answers questions, no bottom line (judge will give bottom line)
Combo General and Special: General with written questions

156
Q

Entry of Judgment based on verdict form

A

General = clerk enters
Special = judge approves, clerk enters
Inconsistent answers: Court can put in proper verdict if inconsistent with verdict, and could order reconsider or new trial

157
Q

Juror Misconduct

A

Only impeached on external matters, not internal matters
But a verdict will not be set aside if the misconduct was harmless

158
Q

Bench Trials

A

Judge determines the facts at trial
Must record for finding of fact, orally or in writing along with conclusion of law

159
Q

Judgment as a Matter of Law

A

Standard:
Reasonable people could not disagree on result
Courts views evidence in light most favorable to non-moving party
Motion can be made after the opposing party has been heard on the issue

160
Q

Renewed Motion for JMOL

A

Comes up AFTER trial, after jury returns verdict
Same standard as JMOL

Timing: 28 days after entry of judgment
Requirement: A motion for JMOL must have been made at trial

161
Q

New Trial Motion

A

Same timing as RJMOL: 28 days after entry of judgment

It’s a “do over” because something at trial requires it
Some reasons a new trial may be granted are:
The judge gave an erroneous jury instruction;
New evidence was discovered that could not have been discovered before with due diligence;
Misconduct was committed by a juror, party, or lawyer, etc.;
The judgment is against weight of the evidence (serious error of judgment); and
Damages are inadequate or excessive
RJMOL is more drastic as it changes the entire judgment

162
Q

Remittitur

A

Damage figure shocks the conscience (excessive or inadequate)
P gets a choice: remit a portion of damages or undergo a new trial
MUST be a choice, can’t artificially lower alone
Both state and federal court

163
Q

Additur

A

Damage figure shocks the conscience (excessive or inadequate)
D gets a choice: add to damages or undergo a new trial
MUST be a choice, can’t artificially lower alone
Only in state court

164
Q

Offer of Judgment

A

A defendant can submit formal offers to settle the case up to 14 days before trial.

The benefit is that the rule contains cost-shifting provisions that apply when a plaintiff rejects an offer to settle and doesn’t do as well at trial as the offer.

165
Q

Motion for Relief (Motion to Set Aside)

A

Grounds –> Timing

Clerical error | Any time

Mistake, excusable neglect, (including viable defense) | Reasonable time (never more than one year)

Fraud, misrepresentation, or misconduct by opposing party | Reasonable time (never more than one year)

Newly discovered evidence that could not have been discovered with due diligence for a new trial motion. The newly discovered facts must have existed at the time of trial. | Reasonable time (never more than one year)

Judgment is void (court did not have SMJ) | Reasonable time (no maximum)

166
Q

Appellate Review

A

Losing party has the right to appeal as long as there is a final judgment
Wraps up entire case on the merits
After making this ruling, does the trial court have anything left to do on the merits of the case?

167
Q

Grant of a new trial

A

is not a final judgment

168
Q

Notice of Appeal

A

30 days
Filed in district court

169
Q

Appeal of Injunctions and TROs

A

Orders related to injunctions may be appealed
TRO not an injunction
TRO extended beyond 28 days becomes preliminary injunction

170
Q

Interlocutory Appeals Act

A

The Interlocutory Appeals Act allows appeal of a 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

171
Q

Interlocutory Appeals: Collateral Order Doctrine

A

The appellate court has discretion to hear an appeal on an issue if that issue:

Is distinct from the merits of the case;
Involves an important legal question; and
Is essentially unreviewable if parties await a final judgment.

172
Q

Interlocutory Appeals: Multiple Claims or Parties

A

Judge wraps up case as to some claims or parties
Not a final order if there are other claims or parties
Court may direct entry of final judgment and expressly find no just reason to delay appeal

173
Q

Interlocutory Appeals: Class Actions

A

A court of appeals has discretion to review an order granting or denying certification of a class action.
The party seeking review must do so at the court of appeals within 14 days of order.
An appeal does not stay the proceedings at district court unless the court of appeals or district court says so.

174
Q

Interlocutory Appeals: Extraordinary Writ (Mandamus or Prohibition)

A

An extraordinary writ of mandamus or prohibition is an original proceeding in the court of appeals to compel the district judge to make or vacate a particular order.
The writ is not a substitute for appeal. It is available only if the district court is violating a clear legal duty.

175
Q

Standard of review: Questions of law

A

Reviewed De Novo
No deference given to trial judge on questions of law

176
Q

Standard of review: Questions of fact

A

“Clearly erroneous” standard for judge’s determination of fact
Jury finding of fact will be affirmed unless reasonable people could not have made that finding

177
Q

Standard of review: Discretionary Matters

A

Judge’s ruling on discretionary matters reviewed under an abuse of discretion standard
Ie. whether to give jury instruction
But content of instruction is de novo

178
Q

Standard of review: Harmless Errors

A

Not every error (even an error of law) requires reversal on appeal.

No reversal is required if the error is harmless; that is, it did not affect the outcome of the case

179
Q

Claim and Issue Preclusion

A

Judgement already entered may preclude litigation in another case
Different judicial systems: will apply the law of the judicial system of case 1.
Always start with claim preclusion then go to issue preclusion

180
Q

Claim Preclusion/Res Judicata

A

One case to seek rights to relief for claim

Requires:
Same Plaintiff and same Defendant (same configuration of parties)
Final judgment on the merits
—Not: jdx, venue, indispensable parties
Same claim
—Majority view: Same transaction or occurrence
—Minority primary rights view: Separate claims for personal injury and property damage

Note to distinguish from compulsory counterclaim

181
Q

Issue Collusion/Collateral Estoppel

A

Issue was litigated in one case, established in case 2

Five reqs:
1. Valid final judgment on the merits
2. Same issue was actually litigated and determined in case 1
3. Issue was essential to the judgment in case 1
4. Issue preclusion can be used only against previous party or in-privity with the party
5. By whom is preclusion being used – mutuality

If not a party, then nonmutual issue preclusion

182
Q

Defensive Nonmutual Issue Preclusion

A

Person asserting preclusion to avoid liability was not party to first case but is D in next case
As long as person against whom had full chance to litigate

183
Q

Offensive Nonmutual Issue Preclusion

A

Person asserting preclusion to support claim was not party but is a plaintiff in case 2

Most states do not allow this

Federal common law and some states allow if “fair” factors met:
In determining whether nonmutual offensive issue preclusion is fair, the court will consider whether:
I. The party to be bound had a full and fair opportunity to litigate in Case 1;
Ii. The party to be bound had a strong incentive to litigate Case 1.
Iii. The party asserting issue preclusion could have easily joined to Case 1; and
Iv. There have been no inconsistent findings on the issue.

184
Q

Time Periods: 1 year

A

Outer time limit for removal based on diversity

185
Q

Time Periods: 90 days

A

General time limit for SoP

186
Q

Time Periods: 60 days

A

Time to answer complaint or file a 12(b) motion if D waived service of process (add 30 days if outside US)

187
Q

Time Periods: 30 days

A

Time for initial removal

Time for remand

Time to return request to waive service of process (add 30 days if outside US)

Time for appeals

188
Q

Time Periods: 28 days

A

Time after judgment to file a renewed motion for judgment as a matter of law

Time after judgment to file a motion for a new trial

189
Q

Time Periods: 21 days

A

Time after service of complaint to answer the complaint or file a Rule 12 motion

Time to amend pleading once, as a matter of course, after its service or after responsive pleading or motion is served

Time to withdraw pleading after a Rule 11 motion is served

190
Q

Time Periods: 14 days

A

Expiration of TRO

Time to file jury demand after last pleading directed to the jury triable issue is served

Time to appeal class action certification or denial

191
Q

Appearance

A

Clerk may enter default judgment when:

  1. Amount in dispute is certain
  2. D has not appeared

An appearance means any formal appearance or any action by the D indicating that they intend to contest the merits.

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