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Property > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

Rule statement

Personal Jurisdiction

How do we start it?

A
  1. Power of a court over a party; geographical
  2. Requires both constitutional due process and statutory long arm authorization
  3. the long arm statute authorizes the assertion of jurisdiction to the full extent of the due process clause
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2
Q

Rule statement

Pennoyer three way

A
  1. Citizen
  2. consent
  3. in hand, in state, tag service

owning property just by itself was not enough in Pennoyer

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3
Q

Rule statement

International shoe

Pure rule and two options

if you knock out the pennoyer 3 way

A
  1. overruled the exclusiveness of Pennoyer and added a 4th way: minimum contacts test
  2. Specific jurisdiction and General jurisdiction
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4
Q

General Jurisdiction

Tell me the pure rule, the case, the test

A
  1. A defendant’s contacts with the forum satisfy GJ if they are so pervasive and constant as to render the defendant essentially at home in the forum state.
  2. Daimler: the court held that it was a comparative theory, where the defendant is most at home. Similar to Pennoyer citizenship
  3. At home test: Domicile = individual; PPB/Corp = corp

extreme scenario: destruction off PPB, company sends everything into US. even though PPB and Corp not there, it still counts

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5
Q

Specific Jurisdiction

The pure rule

A
  1. The defendant must have sufficient minimal contacts that comport with fair play and substantial justice
  2. We look at the relationship among the defendant, cause of action, and the forum state
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6
Q

Minimum contacts

Connection between Forum and Defendant

A
  1. Purposefully avail the defendant of the benefits and privileges of the forum state’s law such that the defendant can reasonably foresee being haled into court there
  2. there must be some purposeful connection between the defendant and the forum
  3. there can be intermediaries - my actions directly led to the conduct in NY even though i have never been to newyork

not just any contacts, contacts that give rise to the benefits and privileges

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7
Q

Additions to connection between forum and defendant

A
  1. is there something about the forum state that the defendant is targetting? like putting a NM flag on toy soldiers (customization)
  2. did the defendant know products were going there? how much
  3. is there some specificity?
  4. is 99% of business in the forum?
  5. quantity can play a role as well

none of these are necessarily dispostivie

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8
Q

Walden

A
  1. There was no connection between Walden and NV
  2. Does not matter if plaintiff has connection
  3. Walden had zero connection with NV himself
  4. Touchestone: **Def have purposeful connection to the state **
  5. it is not enough that the defendant had connection with the plaintiff only, plaintiff actions will not establish PJ SOLELY by themselves

might be different if Walden published a story, talking mad shit, defamed them, and Walden publishes this all over the country and it goes into NV, then he gets sued for defamation. Here, we have a purposeful conduct/connection

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9
Q

Forum and Cause of action

A
  1. the cause of action must arise in the forum
  2. BMS

in BMS, CA v. BMS, but OH and TX plaintiffs want to join. But their COA happened in OH and TX. So no PJ of CA courts

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10
Q

Defendant and the Cause of Action

A
  1. Defendant must have sufficient connection (or be related) to the cause of action
  2. Ford

helpful thought: in international shoe, all those salesmen while they were there gave rise to (way past related, so good for us) the cause of action (tax)

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11
Q

Ford

A
  1. Ford had tons of purposeful availment and benefits and privileges (contacts)
  2. they marketed, sales, dealerships, autoparts
  3. BUT Ford argued these had nothing to do with the the cause of action! so no PJ!
  4. but SCOTUS said no these contacts are sufficiently related or give rise to
  5. you encouraged residents of these forums to buy this cars!
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12
Q

What fails minimum contacts test?

A

Isolated & sporadic + no cause of action = no PJ

btw courts have held isolated and sporadic + cause of action = PJ
if the single contact is significant enough

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13
Q

Fair play & substantial justice?

Burger King fairness factors?

A
  1. Burden on Defendant
  2. Interest of the forum
  3. Interest of the plaintiff
  4. court has never applied the other two
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14
Q

How do you challenge PJ

A
  1. Refuse to show up = default judgment, waived merits but you can contest PJ (collateral attack)
  2. Special appearance = immunity from tag and show up to plainitff’s home court and challenge PJ, preserve appeal but no collateral attack
  3. Waive it and beat them on the merits
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15
Q

SMJ

Diversity Jurisdiction

A
  1. for a federal court to have DJ over a case, the court must have both constitutional and statutory authorization
  2. Article III requires only minimal diversity and has no AiC
  3. statutory authorization requires complete diversity and amount in controvery exceed 75k
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16
Q

Domicile

for a citizen, corp, or unincorp

A
  1. A US citizen is a citizen of birth state unless they changed their citizenship by taking domicile in a different state
  2. you need to be physically residing there and subjective intent to remain indefinitely
  3. citizenship is assessed at time of filing
  4. PPB/INC for corp
  5. Members test for unincorp
  6. Fixed at time of filing
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17
Q

Complete diversity

how do you prove intent

A
  1. deposition
  2. drivers license, other forms
  3. taxes
  4. what kind of job (temp or permanent)
  5. voting
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18
Q

Amount in Controvery

and 3 wrinkles

A
  1. fixed at time of filing
  2. must be made in good faith

in terms of dollars but nonmonetary relief is acceptable and court will put dollar value.
good faith must pass common sense
some laws might not allow punative damages
remember aggregation

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19
Q

Members test

A

for non corps, figured out by firms partners’ location
ONLY the members
headquarters are irrelevant

might have a partner that is corp or another partnership!
partnership? use members
Corp? PPB/Corp

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20
Q

Alien Jurisdiction

A

Foreign v. US = Alien (exclusively) this is the requirement for AJ

TX & FR v. CA = no alien but we have domestic

LPR exception to AJ = if an LPR is domiciled as same state as other side of v. = then no AJ
FR (LPR NY) v. TX is OK for AJ
Fr v. En (no domestic and no AJ)
NY & FR (LPR CA) v. CA = no AJ and yes domestic DJ
domestic DJ looks at US citizens only - LPR are irrelevant AND domestic DJ requires US citizens on both sides

LPR only relevant to destroying AJ
No AJ if us citizens on both side of v

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21
Q

Constitutional SMJ

Federal Question

A

Under Osborn, article III FQ jxn extends to a case in which fed issue forms an essential ingredient, even if dominated by state law issue

just needs to exist

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22
Q

Statutory

Federal Question

Mottley only

A
  1. statutory has been interpreted to be much narrower
  2. Under mottley, FQ jxn exists only if the federal issue appears in the plaintiff’s well pleaded complaint
  3. not by anticipated defense or counterclaim

appear in the complaint and be apart of the claim

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23
Q

Statutory

Federal Question

Grable and Gunn

A
  1. must be necessarily raised = wpc
  2. actually disputed = one party argues the federal issue one way, while other party argued other way
  3. substantial importance = uniformity that a federal forum can offer
  4. Non-disruptive = Capable of resolution in fed court without disrupting the fed-state balance approved by congress
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24
Q

Grable

meets embedded federal issue in state law claim

A
  1. quiet title claim (state law)
  2. notice provided by IRS unlawful - grable needs to prove this so it is WPC
  3. this was actually disputed because both parties will dispute this
  4. substantial because how the IRS gives notice will be important for uniformity
  5. this is a case of law, how does IRS give notice, will not disrupt balance of Fed and State

substantial = 50 different interpretations for how IRS gives notice = BAD

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25
Q

Gunn

does not meet embedded federal issue in state law claim

A
  1. Patent infrigement but loses and then sues for attorney malpractice (state law claim)
  2. there are essential fed ingredients - attorney messed up federal patent case
  3. and he meets mottley WPC as well, he cant win without patent part
  4. Actually disputed? yes both parties will argue
  5. substantial? NO! this is substantial to this case, but not to the fed system of the whole, not a pure question of law that will set precedent, will only resolve attorney malpractice
  6. nondisruptive? NO, a bunch of attorney malpractice cases will be thrown into fed court, regulation of attorneys belong to the state
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26
Q

Supplemental JXN

1367

A
  1. when a claim not eligible for FQ and DJ is joined with a claim that is eligible (anchor)
  2. does claim meet DJ or FQ? yes, court keeps
  3. is the claim related to the anchor claim? no, dismiss
  4. Exception: is anchor based solely on DJ AND plaintiff side AND under R14, R20, R24? yes to all? exclude, dismiss
  5. All surviving, under court’s discretion
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27
Q

3 potential defects

Removal and Remand

A
  1. Lack of SMJ
  2. violation of Forum defendant rule
  3. untimeliness of removal or like unanimity rule
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28
Q

in general

Removal and Remand

removal only

A
  1. each defendant gets 30 day period to remove (subject to consent if multiple defendants) – when the case becomes removable (typically at time of complaint service) but for example Forum defendant rule may stop removable
  2. one year bar for DJ that begins at date of original complaint (with exception of bad faith)
  3. Forum defendant rule = if based on DJ may be removed only if no defendant is a citizen of the state in which the case is filed
  4. removal is based on WPC rule, only original matters no supplemental
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29
Q

in general

Removal and Remand

remand

A
  1. a remand motion for any ground other than lack of SMJ to be made within 30 days
  2. cannot appeal remand
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30
Q

General Rules

Complaint

A
  1. short and plain statement of jurisdiction
  2. Demand for relief
  3. can plead in the alternative or inconsistently
  4. Fraud must be pleaded with particularity = who what when where why
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31
Q

Complaint

Conley

two requirements that came from it

A
  1. must be legally sufficient
  2. must give fair notice of the claim and grounds upon which it rests = does the defendant know how to respond to this claim?

1) I cant sue you for being bald
2) you harmed me - how do i respond to this dude?

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32
Q

complaint

Twiqbal

requirements that came from this?

A
  1. Must be factually sufficient
  2. Disregard all conclusory allegations
  3. assess remaining factual allegations to determine if they state a plausible claim for relief. = taking them as true
  4. assessment based on judicial experience and comon sense

a conclusory allegation is one without direct support for and instead is an inference asked to be drawn from the other allegations in the complaint
take into considerations other possibilities

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33
Q

facts

Twombly

A
  1. plaintiff’s obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do
  2. Parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality
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34
Q

facts

Iqbal

A
  1. Allegations are conclusory and not entitled to be assumed true; discrimination is not a plausible conclusion
  2. Respondents’ complaint does not contain any factual allegations sufficient to plausibly suggest the petitioners’ discriminatory State of Mind
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35
Q

in general

Service

A
  1. compliance with rule 4
  2. party cannot serve and person who serves must be over 18
  3. summons and complaint (process) served within 90 days of filing (extendable)
  4. prove service by an affadavit from service processor
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36
Q

In the US

Service

A
  1. by state law
  2. in-hand tag service
  3. leave at dwelling with suitable resident
  4. serve an agent designated to receive service
  5. Business = state law or officer/agent appointed to receive service
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37
Q

waiver

Service

A
  1. serve summons complaint and 2 copies of waiver form using reliable means
  2. 30 days to respond
  3. if D waives, get 60 days to respond (standard is 21)
  4. if D fails, without good cause, to sign and return a waiver, cost shifting for service

very carrot and stick vibe here
dont forget about R5 easy service
good cause = somehow missed email (spam folder)
waiving service does not waive PJ

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38
Q

Timeliness

Answer

also for a denied motion to dismiss

A
  1. within 21 days after service (60 days after waiver)
  2. can be extended from asking party or court if party is denies
  3. MTD denied (fully or in part) = 14 days (adjustable)

these are defaults

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39
Q

admit, deny, …

Answer

A

General denial - never do this, if you get something (even small) wrong, you are deemed to admit everything

What to do: Admit what is true, deny the rest.

you can admit in your own words too. (give your own characterization)

if you fail to deny an allegation, you are deemed to have admitted to it

at the end, say: the def denies the remaining allegations in this paragraph

you must also list any affirmative defenses in your answer, if you do not, they are not apart of the lawsuit.

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40
Q

under 12b

Preanswer motion

A
  1. Lack of SMJ
  2. Lack of PJ
  3. Insufficient process
  4. Insufficient service of process
  5. Failure to state claim upon which relief can be granted

you fill file R12 MTD on multi grounds 1,2,3,4

1) PJ and service defenses (2,3,4) must be raised in the first response or are waived throughout the whole case
2) Can raise multiple of these, but only one pre-answer MTD = no successive R12 MTD

41
Q

Other R12 motions

  1. R12c
  2. R12e
  3. R12f
A
  1. Motion for judgment on the pleadings = SoL run out just motion this and win
  2. Motion for a more definite statement
  3. Motion to strike for scandalous and irrelevant material
42
Q

before trial

Amending pleadings

A

once within 21 days after service of complaint/answer

Or within 21 days after service of responsive pleading or motion under R12, whichever is first

After 21 days

With party’s consent or court’s leave when justice so requires

Unless unfair prejudice to other party or bad faith on party seeking amendment

Bad faith, repeated opportunities to amend, undue prejudice

43
Q

during trial

Amending pleading

A

Parties can give consent to opposing party to amend and include issues not raised in pleading. Opposing counsel can object, but shouldn’t bc judge will likely grant

“justice so freely requires”

44
Q

“when justice so requires” - Prejudice in pleadings

Beeck v. Aquaslide

A

any amendmet will generally be a disadvantage but that is not prejudice.

prejudice means now there is some inability of the opposing party to pursue its case (usually some evidentiary disadvantage)

classic example: nonmoving party has some evidence for an issue that was not raised in the original pleading. The nonmoving party deletes it, then the moving party wants to amend it back in. AND now the nonmoving party is at an disadvantage. Could also be a witness in a similar situation.

outside of this: no prejudice

district judge has alot of discretion.

45
Q

relating back

Amending pleadings

A

Relation Back: R15(c)

An amendment to a pleading relates back to the date of the original pleading – When case filed before SOL, then runs out and P aspires to amend complaint as if it were before SOL ran.

3 ways it allows:

1) Statute allows it

2) If it is related – only when changing a claim or defense

46
Q

relating back

Amending pleadings

if you wanna add a new party

A

if you wanna add a new party – R15(c)(1)(C)

must be related

and within 90 days from original complaint filed

and new defendant knew of the action

and knew or should have known it was the proper defendant but for some identity mistake on part of the plaintiff

Costa Croceire is a good case for this

if these, then relate back

47
Q

R11

Sanctions

one really important thing here

A
  1. Signature requirement: is a good-faith affirmation of no bad faith: delay, cost, harrassment
  2. Substantive Standard
  3. Facts and legal contentions must have (or believed will have) evidentiary or legal support (just need some basis)
  4. sanctions can be fines, fee shifting, or nonmonetary
  5. Courts can issue show-cause order (a notice and chance to explain) sua sponte or parties can move for it
  6. Parties moving for sanctions must serve without filing for 21 days (safe harbor) and must be stand-alone (R5)
  7. Khan: judges have a lot of discretion in this

some basis = at least one

48
Q

R18(a)

Joinder

A

Governs joinder of claims among existing parties to a claim

Will allow unrelated claims if there is one related claim

(tag-along claims)

permissive - maybe she doesnt like forum

must have independant SMJ

this also is what allows aggregation of AiC in DJ

49
Q

counterclaims R13

Claim Joinder

A

all counterclaims are allowed. (so R18 wont matter)

Rule 13(a): a related counterclaim is compulsory: use it or lose it!

a related counterclaim will almost always have SMJ

Rule 13(b): an unrelated counterclaim is permissive

why are related counterclaims compulsory?
duplicative efforts, same issues litigated twice, inefficient

50
Q

Counterclaim relatedness test strategy

A

Counterclaims it can hurt you because of the compulsory v. permissive

If you really hate the forum: take the risk and go assert it at the different forum knowing that, if they deem it related, you might lose it.

Don’t care about the plaintiff’s choice of forum? Just assert it because you love your claim.

51
Q

crossclaims R13

Claim joinder

A

Only permissive cross-claims

Must be Related

no unrelated crossclaims unless . . . R18a!!

relatedness test wont matter here

52
Q

What is related?

A
  1. any logical connection between the two = related (liberal/broad)
  2. Factors: same witnesses, same parties, same transaction or occurance, same insurer, same evidence

common sense

53
Q

Rule 20

Party Joinder

A

Rule 20: parties MAY be joined if their claims are related AND feature a common question of law or fact of all parties

A wants to sue B and C

A v. B & C

Permissive
R21: Misjoinder if party = drop a party if R20 bad = wont dismiss entire lawsuit

54
Q

R20

Party Joinder strategy

A

Plaintiffs join together? Cheaper to sue together, put pressure on defendant to induce settlement, optically it looks better with more litigants, mask weaker claims with stronger claims, join evidence, attract better attorneys

Some reasons not to:
you have strongest claim and dont want weaker ones joining, preference for forums, personality conflicts, attorneys might not get along.

What about joining defendant’s
efficient to sue D’s together, simplicity of discovery, dont know which defendant cause issue = those defendant’s figure it out

you dont want to join a rich defendant with a poor defendant

55
Q

R24

Intervention as of right

A

Court has no discretion–intervener must be let in only–done through interveners motion

When statutory right (typically gov’t and constitution issue– will intervene on side which will allow law to be upheld)

Intervener’s interest will be impaired, and no party adequately will represent their interest

56
Q

R24b

Permissive intervention

A

When statutory or

Claim or defense that shared a common question of law or fact (makes you eligible)

Court has discretion to allow intervention; court must consider delay/prejudice to original parties’ rights

57
Q

R14

Impleader

A

Rule 14: a Defending Party MAY bring in a third party who may be liable for some/all of any judgment against D

needs to be served process pursuant to R4

defending party has 14 days to implead as a matter of right, after you need the court’s leave (freely given)

Look for insurance, indemnification, contribution but only for og defender, the rest can be claim joinder

3rd party treated as new defendant = R12 MTD, can counterclaim (compulsory, permissive), crossclaims

3rd party can assert related claims against plaintiff

can assert any defenses that og defendant can assert, because they might not wanna defend, even if waived

plaintiff MAY assert related claims against 3rd party

can re-implead as well
plaintiff can implead to as long as subject to counter
must be served under R4

58
Q

R23b

Class actions

Types of class actions

A

b(2): Class directed conduct (like discrimination); only injunctive/declaratory relief, which is non-monetary relief

b(3): Catch-all that requires

Predominance of common issue:

Common questions must predominate over individual issues

Superiority of the class action over individual actions = Must be superior to other available methods fairly and efficiently adjudicating the controversy

Reasonable Notice and right to opt out

(b)(2) class doesn’t require notice and there is no way to opt out (since the action is class-conduct based)

b2 = you are affecting a class as a whole

59
Q

Class actions requirements

A

Numerosity (too many members for joinder to be practical)

Less than 10 unlikely, More than 50 likely

Commonality (at least one question of law or fact uniting the class)

Typicality (rep’s legal issues must be typical of class)

Adequacy (rep will fairly represent the members)

court decides if met

typicality – think the rep’s claim running out of SoL and class isnt

60
Q

Logistical matters

Class actions

A

Court must approve/appoint class counsel- Rule 23(g)

Court must certify class, which it does in an order that defines the class and appoints counsel–it can also decertify if later it decides it does not meet class requirements

No settlement without court approval that it’s fair, reasonable, and adequate

For (b)(3) class, must give notice of settlement offer which class members can object to or opt out litigate individually = must give reasonable notice

no notice and opt out for b2
DJ look only at named representatives
PJ no min contacts analysis

61
Q

Walmart

A

Gender discrimination (b)(2) class action case; SCOTUS = found no commonality
commonality means that there must be a common question uniting the class on which LIABILITY DEPENDS and not pleading standards, we need significant proof of commonality

One rule from the case: significant monetary demands for a (b)(2) cannot happen –> has to be a (b)(3) class if asking for monetary damages

62
Q

R16

Pretrial conference

A

Parties come together and talk about the case

will discuss case (issues or troubles that may arise)

how much managerial authority a judge will use will depend on the case and the judge

Purpose: make sure that case proceeds quick and without trouble

judge can dismiss claims that have not been emphasized by the plaintiff here and cut the fat

there will be a final pretrial conference before trial begins where everyone goes over what will be held at trial

there will be a final pretrial conference where parties show all the cards

63
Q

R16

Scheduling order

A

Answer filed, pleadings closed, time to meet the judge!

here, you will get your scheduling form (set trial date and other default deadlines–which are flexible)–these are court orders and violating them will subject you to R16(f) sanctions

Gives court broad discretion to manage cases

All crt orders

Helps streamline cases

There’s a preference for settling cases

64
Q

ADR: 3 forms

A
  1. Mediation (negotiation with a third party mediator)
  2. settlement (negotiated dispute being resolved)
  3. Arbitration - cant force unless contractual obligation – private judges – supposed to be easy, streamlined

Concepcion - class action waiver is ok in arbitration

65
Q

R68

Offer of judgment

A
  1. Def makes offer
  2. Plaintiff accepts = written acceptance 14 days = done
  3. Plaintiff declines or is untimely AND plaintiff wins but less than offer of judgment = cost shifting

plaintiff must pay D’s litigation costs since date of offer
evidence of unaccepted offers are inadmissable

66
Q

R26f

Discovery plan

A
  1. first thing in scheduling order
  2. very collaborative
  3. everyone figures out what they want in discovery, give me 10 depos! do you want everything in pdfs?
  4. all discovery is continuance-able, typically 30 days
  5. talk about any issues of privlege
  6. if documents heavy, but can clawback and make them destroy it for inadverdant disclosure
67
Q

Scope of discovery

Discovery

A
  1. relevant
  2. non-privileged
  3. proportional = most fighting

work product is privileged
you can discovery from third parties but you need subpoena

68
Q

But what is proportionality?

A
  1. importance in resolving issues
  2. too expensive to produce for a case that might product a less amount
  3. party’s relative access to information
  4. party’s resources
  5. burden outweigh benefit?

trade secrets are not privileged, it depends, you wont get coke secret formula

69
Q

Tools to alleviate discovery burdens

Discovery

A

Confidentiality orders = cannot use this info anywhere else other than this litigation, alleviate alot of burdens. Ex) privacy protection, can be lawyer eyes only

Cost shifting

Limiting discovery

Staging discovery - order and delay most burdensome

sample discovery

Redacting private, sensitive info that is less relevant

Other creative solutions

if there it is something really bad for your client, settle lol you must produce

70
Q

Limitations on Discovery

Discovery

A

Duplicative or cumulative
I object! it’s all publicly available on the internet! Why should I spend money looking for it! Just do a google search.

Could be obtained by easier or cheaper means

Already had ample opportunity to ask for it
You can’t depose my client for a third time! You’ve had ample opportunity to get what you want! This is burdensome.

71
Q

Work product

A

WPP protects:
Documents, tangible things, oral statements
Created in anticipation of litigation
By a party or party’s representatives
“zone of confidence”
Included on a privilege log
2 types of WPP:

(1) Fact work product

Can be discoverable upon showing of substantial need and undue hardship

Note: testifying expert falls under fact work product and is discoverable

(2) Core work product

Never discoverable

It’s facts + conclusions, atty impressions/legal conclusions

Note: consulting expert falls under core work product if they add expertise

both for ACP and WPP, once a homie becomes not a homie, it becomes waived
also once you decide to use it at trial = waived
WPP does not have to involve attorney, just in anticipation of litigation by a party or party representative so ex) a company does recording after plane crash, is this for litigation or for something else? this is what it hinges on.

72
Q

WPP

Hickman

A
  1. facts are not protected, what the survivors have to say is not protected because other side got their first, plaintiff go interview them
  2. efforts are protected
  3. fact work product has an exception = substantial need and undue hardship - if they died
  4. does not have to be an attorney for workproduct can be a party, expert, etc = make them depose you, but if you cant remember, might creat substantial need

for an expert = if they testify then not work product
if not = protected
once you designate testifying expert, all of it is waived

73
Q

Attorney-Client privilege

A

communication between attorney and client and is it for purposes of legal advice (these are the elements)

ACP:

· Included on a privilege log

Note: ACP attaches when there is an interest of representation

o Anything you say in the zone of confidence relating to litigation is covered but it is waived if shared outside zone

o Claw back clause: if accidently send communications over, you can get them back if at the start of discovery both sides agree to a claw back clause

Note: ACP is waived if attorney becomes adversarial party in a litigation

· A + A ≠ ACP (it’s WPP)

· Just like WPP, facts ≠ protected, communications are

· ACP can apply to corporations

gray area here is when it is a firm
upjohn = high level people are ACP, also employees not highlevel when actions that bind the company

walmart store managers does discrim and it becomes protected. so if it binds the company, opposing counsel go interview yourself!

the test = speaking as the company

74
Q

Discovery Mechanisms

Initial disclosure

A
  1. always will be asked for, so just release it as a matter of course
  2. identify persons that will have discoverable info that will help your case, no obligation to baddies
  3. describe documents that you will have that will help your case
  4. Plaintiff = computation of damages
  5. defendant = any insurance agreement that will cover liability

name and address and “likely to have useful info about that night”

75
Q

Discovery mechanisms

two minor ones

A
  1. depositions by written questions = very simple testimoney
  2. Request for examination = for a party, under court order, for good cause = physical injury, mental health
76
Q

Discovery mechanisms

Interrogatories

A
  1. written Q’s to other party answered by their attornies
  2. 25 including subparts
  3. 30 days
  4. responding party has a duty to investigate
77
Q

Discovery mechanisms

Request for Doc production

A
  1. client will get the docs and then you review them for discovery scope things
  2. docs, meta data, deleted docs
  3. when you request: must reasonably describe them, must be in possession or control (doc holding stuff counts),
  4. produce as in kept in ordinary course of business or as requested
  5. allow for inspection, have fun!
78
Q

Discovery mechanisms

Request for admission

A
  1. no default limits for number
  2. other side will admit deny or insufficient info
  3. very narrow
  4. not for nonparties
  5. used to streamline
  6. and identifying areas of agreement or disagreement
  7. very easy to amend and nearly whenever
79
Q

Discovery mechanisms

Depostions

A
  1. most useful
  2. send notice of depo
  3. default: 10 max and 7 hours max
  4. ask everything and finish with “anything else”
  5. opposing will say objection or else waived to object
  6. afterwards deponent can review and change anything = yes to no
  7. your client = answer the questions the most autistic way you can = example: do you know bob? yes

R30

80
Q

R37

Discovery sanctions

A

If disagreement on discovery then have meet & confer; 3 results

Requesting party gives in, objector wins

Objector keeps objection and files a motion for a protective order

Objector keeps objection and files a motion to compel (MTC)

MTC: whoever loses MTC had to pay fee and costs to the other side in having to make that motion, except if loser was substantially justified in objecting

More severe sanctions for failure to comply w/ crt order

Ex: Poole v. Textron

adverse inference = failure to provide after MTC = taken as true
striking pleadings - cant use defense
dismissed
default judgment

81
Q

Spoiliation

A
  1. do not destruct evidence
  2. as soon as you guys have decided to work together
  3. includes basically everything
82
Q

Voluntary R41(a)

Dismissal

A

Rule 41(a): Voluntary Dismissal

R41(a)(1) P can dismiss w/out a crt order by

(a) filing a notice of dismissal before D serves either an answer or a motion for summary judgement OR as a stipulation signed by all parties (early in the case: before an answer but settlment anytime)

(b) unless the notice or stipulation says otherwise, dismissal is WITHOUT prejudice. But if P previously dismissed any fed/state action on/including the same claim, a notice of dismissal IS WITH prejudice (operates as an adjudication on the merits)

Tldr: successive dismissals will operate as an adjudication on the merits aka with prejudice

(2) by court order

Crt order dismissals on terms crt considers proper

Unless otherwise stated, dismissal is WITHOUT prejudice

83
Q

involuntary R41(b)

Dismissal

A

If P fails to prosecute or comply w/crt orders, a D may move to dismiss the action/any claim against it

Unless order states otherwise, a dismissal under this subsection (except for lack of jdx) is WITH prejudice and operates as an adjudication on the merits

flip side of default judgment
plaintiff gave up
it is a forfeit

84
Q

R55

Default judgment

A

Step 1: get default entered by clerk;

Step 2: go after default judgement

Default: party hasn’t shown up

Default –> default judgement (≠ based on merits, but more factual/administrative)

Rule 55(a): Default

when D has failed to plead or otherwise defend (w/motion or ans), and that failure is shown by affidavit or otherwise (can be P atty saying s/he hasn’t been served with docs or extensions), clerk must enter the party’s default (finding that D has given up)

Rule 55(b): Default Judgement

(1) by clerk- if P’s claim is for sum certain or sum that can be made by computation, clerk must enter judgement for that amount

(2) by court- if no sum certain, crt will hold a hearing to determine appropriate money and will give D at least a 7-day written notice about the hearing

Rule 55(c):

Crt can also set aside default and default judgement for good cause

Ex: Colleton Prep Academy v. Hoover Universal

Note: delay ≠ prejudice (need more than that)

85
Q

Motion for Summary judgment

A

Motion can be made by either party, and be made on part of a case or part of a claim

Rule 56: Crt shall grant if movant shows there is “no genuine dispute as to any material fact”

o Genuine dispute: one in which a reasonable jury could disagree

o Material fact: one that is essential to the claim

Motion can be made at any time up to 30 days after close of discovery, unless otherwise stated

Discovery on that issue MUST be done since MSJ is based on facts/evidence, not pleadings

§ Only admissible evidence will be considered in MSJ

it is a prediction of the jury!

86
Q

MSJ flowchart

additions as well

A

Court will weigh the evidence in the light most favorable to the non-movant

if the party who bears the burden (typically plainitiff) is making the MSJ, it’s very hard for the motion to be granted because we do not know how jury will react

  1. defendant MSJ & affadavits, plaintiff opp & affadavit, Def reply
  2. did the defendant meet initial MSJ burden?
  3. no = trial
  4. Yes = did plaintiff add evidence to create genuine dispute?
  5. no = grant MSJ
  6. yes = MSJ denied = trial
87
Q

Affirmative evidence MSJ

A

The motion is accompanied by the defendant’s own affirmative evidence that tends to reject or negate or deny the plaintiff’s claim

Very difficult to win because we do not know what the jury will do with that evidence (will they believe or not?)

Adickes

88
Q

No evidence MSJ

A

Def: “Judge, the plaintiff has the burden of proof to prove the case by a preponderance of the evidence. Please look at the record of discovery. As you may see, the plaintiff has zero evidence on one of the essential elements of the plaintiff’s claim. SO plaintiff has no evidence. So if i am correct, the plaintiff cannot mathematically win.”

Def does not come up with his own affirmative evidence disproving the plaintiff’s claim, he just points to the record and says the plaintiff has zero.

A good defendant will do both affirmative and no evidence.
celotex

89
Q

2 mini cases for MSJ

A

Anderson: Substantive evidentiary standard of proof at trial is that which should be used in MSJ analysis—if clear and convincing, use that. MSJ incorporates substantive burden at trial.

Matsushita: This case stands for the proposition that when the substantive law specifies a certain weight that must be given to evidence, the weight of it is relevant to the analysis of SJ

90
Q

Demand

Right to Jury

A

Rule 38(b): right to trial by a jury may be demanded by serving the other party with a written demand no later than 14 days after the last pleading directed to the issue is served

In practice, usually just included on the pleadings (complaint and answer)

—-> MUST be demanded to be preserved + it can be waived later

no preemptory challenges on racial discrimination
must be unanimous

91
Q

Questions of Law v. Questions of fact

A

Questions of Law (judge) - if an issue would be more appropriately looked at by judge based on history, pragmatic, or logical reasoning (Markman- dry cleaning)

Functional test: who would be better at interpreting the term inventory in a patent; a group of normal people or a judge?

SCOTUS reasons a judge will be better at patents because they are pretty technical, written by lawyers, judges have seen patents a lot more often so better for a judge

Having a uniform interpretation of the scope of a patent is really important, instead of having a jury re-litigate this many times over

THIS IS THE TEST WE USE IN GRAY AREAS
Better for jury or judge?
Precedent?

Another ex) what should be obscene be in 1st amendment?
The term obscene depends based on the community norms, so let jury do it.
Questions of Fact - jury (Reeves-age discrimination)

92
Q

JMOL

A
  1. May be made after nonmovant has been completely heard on a claim, defense, or issue at trial
  2. Looking at what has been introduced in trial for the jury, is there any way that a rational jury could find for the nonmovant based on this subset of evidence?
  3. can be made any time before case is submitted to jury
  4. JMOL can be made pre-verdict (“directed verdict”) under R50(a). A pre-verdict JMOL can be renewed within 28 days after the verdict (“JNOV”) under R50(b).
  5. The 7th amendment bars post-verdict JMOLs that were not moved for pre-verdict

Same standard as MSJ

93
Q

New trial

A
  1. Motion or sua sponte notice must be made within 28 days of judgment
  2. kinds of errors:
  3. harmless error = no new trial
  4. errors where we are unconfident about the verdict = new trial

28 day not extendable
judge can decide sua sponte but timely also can do it for any reason even if not brought up by parties

94
Q

When can you get a new trial?

A
  1. Mistake by judge that is not harmless = overruling something he should not have
  2. Juror misconduct or impartiality
  3. verdict against the great weight of evidence
95
Q

against the great weight of evidence

A
  1. cant be that judge disagrees with jury
  2. it has to be that judge thinks that the jury verdict represents a serious error in judgment or in understanding the evidence = must consider cost and expense of new trial

up to judge discretion
no new trial if already one new trial and comes out same
JNOV = so against the evidence that jury reached wrong verdict as a matter of law
here its more like we think the jury may have made a mistake

96
Q

Remittiter v. Addititer

A
  1. Remittiter: new trial granted for damages unless plaintiff agree w/ judge for lesser amount
    Jury awarded more damages than the evidence otherwise would support
    Wont violate 7th amendment
  2. Addititer: plaintiff should be offered alot of money, jury gives little money
    Unconstitutional, violates 7th, because no jury has approved the greater amount
97
Q

two grounds

Relief from judgment

R60

A
  1. R60a = clerical error: will be corrected and receive amended judgment
  2. R60b = Relief from final judgement
98
Q

grounds for reopening judgment

Relief from final judgment

R60

A
  1. mistake of law, surprise, excusable neglect
  2. newly discovered evidence
  3. fraud
  4. void judgement (Lack of SMJ)
  5. Catch all

for 1, 2, 3 = one year bar

be prompt and diligent for all this

catch all = if it is the person’s fault, then no

99
Q

Erie

A

use state law
use FRCP
use the rule of where the case was filed

Property (9 decks)

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