Civil Procedure Flashcards
Personal Jurisdiction
PJ involves the court’s ability to exercise authority over parties and their property
Core concept is FAIRNESS i.e. is it fair for this court to exercise jx over the D?
Must balance the state’s interest in protecting its citizens with due process rights protecting against unfair exercise of jx
Statutory/Const. constraints can limit a court’s jx
Personal Jurisdiction Analysis
jx must be (1) statutorily authorized AND (2) constitutional
(1) Statutory - an applicable state law must authorize jx (usually a long-arm statute will apply)
(2) Constitutional - jx must satisfy DUE PROCESS
- Minimum contacts with the forum state
- adequate notice of the action
- opportunity to be heard
In personam PJ
jx over persons
courts may render judgement against an individual based on contacts with the forum state
In rem PJ
jx over property or status, including ownership disputes
(1) Court adjuicates rights of parties with respect to property in the forum state
- judgment binding as to disposition of property rights not as to parties personally
(2) Often involves estate issues, business proceedings, property disputes
Quasi in rem PJ
permits a court without PJ to determine certain types of disputes between P and D when property is located in the forum state
(1) Property is attached for some reason not necessarily involving the property itself - e.g. action against D and his assets due to fears D will flee state
(2) Court may render judgment as to persons with respect to property (rather than judgment over person or property itself)
Statutory Limitations on PJ
State laws often determine when courts may exercise jx
(1) Fed. Court must analyze jx as would a state court in which it sits and must follow applicable state statutes
(2) Plus it must be const.
General Requirements for In Personam Jx
IF ONE OF THE FOLLOWING:
(1) D is personally served in the forum state
(2) D is domiciled in the forum state
e.g. D maintains permanent home in forum state
(3) D consents to jx (express or implied)
(4) D’s actions fall within the state’s long-arm statute
- most common is a general/unlimited long arm statute which confers state courts with jx to the extent allowed by the Constitution
Constitutional Limits on PJ
To be subject to PJ, D must have such minimum contacts with the forum state that exercising jx does not offend traditional notions of fair play and substantial justice
Constitutional Limits on PJ Analysis
(1) Minimum Contacts
D must have sufficient minimum contacts with the forum state
Inquiry focuses on:
(a) Purposeful Availment - did D purposefully conduct activity in forum, thus invoking benefits and protections of the forum’s laws?
(b) Forseeability - did D know of or anticipate being held accountable for her in-forum activities?
(2) Fair play & Substantial Justice
Give D’s contacts, exercise of jx must not offend these notions
Inquiry focuses on:
(a) Convenience - would litigating in the forum severely disadvantage D?
(b) State’s Interest - does forum state have an interest in providing redress for residents or an interest in the outcome?
Minimum Contacts
(1) Purposeful Available - D must purposefully act in the forum i.e. reach out in a non-accidental manner (e.g. using roads, doing business in-state, creating a market for D’s products, etc)
(2) Foreseeability - D must know or reasonably anticipate that she could be held accountable for her activities in the forum state
Circumstances that may give rise to Minimum Contacts
(1) Website - interactive sites more likely than passive sites.
- Interactive = two way comms between user and operator
- Passive = makes information available but no business is transacted
(2) Putting goods into the stream of commerce
- Unclear is manufacturer is subject to PJ if it knows or hopes product will wind up in a particular forum. Look for intentional targeting
- mere awareness that component parts may reach forum as part of another product is insufficient
(3) Targetting the forum state - increasingly, SCOTUS has equated minimum contacts with a targeting of the forum state. This requires some deliberate activity within and cultivation of the state.
Fairness Factors
Due process requires that the exercise of jx must be fair (i.e. it must not offend traditional notions of fair play and substantial justice)
3 Factors
(1) Relatedness of contacts & claim
(2) Convenience
(3) State’s interest
Relatedness of Contacts & Claim Factor
Does P’s claim arise from or relate to D’s contact with the forum state?
(1) Specific Jx - claims arise from or related to D’s in-state contacts
- minimum contacts must be established
- D can only be sued for claims arising from or related to in-state contacts
- Creating a market for its product may subject manufacturer to jx in the forum even though sale did not occur there
(2) General jx - claims do arise from to relate to D’s in-state contacts
- D is “at home” in the forum state (incorporated or place of business)
- If found, D can be sued for any claim arising in or outside of forum
Convenience Factor
would jx in forum severely disadvantage D?
- e.g. distance to courthouse, inability to travel, or lack of familiarly with court system
- must be so inconvenient and difficult that D is inherently put at severe disadvantage compared to P
State’s Interest Factor
does forum state have an interest in allocating its limited resources to hearing this matter?
- interest is less compelling when case involves non-resident actors and non-resident acts or when case involves complexity
Notice Requirements
Due process requires that D must be sufficiently notified of a pending lawsuits
Notice must be reasonably calculated under the circumstances to apprise interest parties of the pendency of the action and afford an opportunity to be heard
Methods of Notice
traditional methods of notice satisfy due process
e.g. personal delivery, registered mail, delivery to an appointed agent
P need not deliver notice personally; can be given by court-appointed agent or agent hired by P
If P knows that notice was not received by D (e.g. by mail), P cannont proceed if practical alternatives to giving notice exist
Personal Service
If D is personally served, they are likely subject to PJ within the forum state
Three recognized Exceptions:
(1) Fraud - D who is served after being lured into forum under false pretenses
(2) Force - D who is served after being brought involuntarily into the forum by force
(3) Witness - a D who is served while responding to a court subpoena
Consent
Express or implied.
A forum selection clause is the most common form of consent and will be enforced unless the selected forum is remote and alien to the parties/txn.
Defendant can also consent by waiving the objection at first appearance.
If D appoints an agent in the state this can satisfy consent.
Subject Matter Jurisdiction
Fed. Courts must have authority over the claim in question (as opposed to the parties or property which concerns PJ); SMJ refers to court’s ability to exercise that authority
Const. provideslimits on types of cases that fed.courts can hear.
SMJ CANNOT BE WAIVED.
By contrast, state courts are presumed to have SMJ. In a narrow set of cases, federal courts have exclusive SMJ (e.g., patent infringement)
Types of SMJ
(1) Diversity Jx
(2) Federal Question jx
(3) Supplemental Jx
(4) Removal Jx
Diversity Jx
The constitution grants fed. courts SMJ over controversies between citizens of different states, even where claims do not involve fed. law
Conferred by statute (28 USC 1332) but the statute does not grant SMJ over all cases between citizens of diff states.
Requirements:
(1) Complete Diversity
No P and D can be from same state
(2) Amount in Controversy >75,000
Must be in good faith
Exceptions:
Will not hear divorce actions, alimony, child custody, or probate
Citizenship for Complete Diversity
Every P must be of diverse citizenship from every D
Natural Persons
- Citizen of the state where domiciled i.e. where they were last both (1) Physicaly present and (2) intend to remain indefinitely (permanent home)
Businesses
(1) Corporations - citizens of every state where incorporate and the one state where corp. maintains principal place of business (nerve center i.e. corp headquarters)
(2) LLCs/LLPs/etc - citizen of all states in which any partner or member is a citizen
Amount in Controversy
P’s complain must make a good faith allegation that the amount of damages or injury in controversy exceed $75,000, excluding interest and costs
Lenient standard - to dismiss for insufficient amount there must be no legal possibility that recovery will exceed 75k
Equitable Relief Claims - AIC
Court looks at value of the harm caused
- can look from either P or D perspective i.e. does act requiring injunctive relief harm P by more than 75k;
- or would it cost D more than 75k to comply with the injunction south?
Aggregating Claims for AIC
may be permissible to meet 75k requirement
(1) One P can aggregate all her claims against a single D
(2) Multiple Ps or Ds - aggregating only allowed if either:
(a) One P has Joint liability claims against multiple Ds (use total value of claims)
(b) Multiple Ps seek to enforce a single title or right in which they have a common, undivided interest (rare)
e.g. several Ps jointly own real estate and sue D to quiet title
Federal Question Jurisdiction
Fed. Courts have jx over properly-pleaded claims arising under fed. law (28 USC 1331)
Requirements: Claim must show a right or interest founded substantially on fed. law
(1) Must appear on the face of the complaint not extraneous allegations or potential defenses
(2) Ask if P is enforcing a right that arises under fed statute/const./etc
Exclusive Fed. Jx
(1) Bankruptcy
(2) Patent, Copyrights, Trademarks
(3) Federal Antitrust
(4) Postal matters
Supplemental Jurisdiction
Allows a federal court to hear additional claims (e.g. counterclaims/cross-claims) that do not on their own meet diversity of FQJ requirements (28 USC 1367)
Requirement that it arises from a Common Nuclear of Operative Fact (CNOF)
- Same transaction or occurrence as the underlying claim that does have Federal SMJ
Court has the discretion to refuse a supplemental claim if:
(1) Original SMJ claims dismissed earlier in the proceeding
(2) Supplemental clai raises a novel or complex state law issue, or
(3) Supplemental claim substantially predominates over original SMJ claim
Limitation on Supplemental Jx
in diversity cases, supplemental jx is withdranw for claims by P (does not apply to claims by other parties)
Exception - a co-P may use supplemental jx to have a below-limit claim heard in fed. court
Even then, the Co-P’s presence in the suit cannot override the complete diversity requirement
Removal Jurisdiction
D can remove a case initially filed in state court to fed. court if the fed. court would have had SMJ
Rules:
(1) Can only remove if the case could have been filed in fed. court
(2) Only D can remove and all Ds must agree
(3) Can remove only to fed. district embracing the state court in which the case originally filed
(4) D who files a permissive counterclaim in state court waives the right to remove
Timing - within 30 days of service of process of first removable doc
Procedure - D must file notice in fed. courts including grounds for removal and copies of documents served in state court
Diversity Jx limitations on Removal
D cannot remove if P filed suit in any D’s home state
i.e. no removal if any D is a citizen of the forum state
Remand
if removal is improper, court can remand to state court
Improper procedure - P can move to remand within 30 days
Lack of SMJ - P can move to remand at any time
Erie Doctrine
In diversity cases, Fed. courts must apply state substantive law and fed. procedural law
Analysis:
(1) Is there a valid federal law that is on point and directly conflicts with state law?
- if yes apply fed law
(2) If there is no federal law on point analyze under these tests:
(1) Outcome Determinative test
(2) Balance of Interest test
(c) Forum Shopping avoidance
Outcome Determinative Test
Would applying or ignoring the state rule affect the outcome of the case?
If yes, state law is substantive and should be applied
Balance of Interests
Does either fed. or state system have a strong interest in applying its rule?
If one has clearly stronger interest apply that rule
Forum Shopping Avoidance
if fed. court ignores state law, would it encourage litigants to flock to fed. court?
If yes, state law is substantive and should be applied
ALWAYS Goverened by State Substantive Law:
(1) Elements of a claim or defense
(2) Statute of Limitations and rules for tolling SOL
(3) Conflicts/choice of law rules
(4) Standard for granting a new trial because the jury’s award was excessive or inadequate
Venue
Venue determines in which fed. distrcit the case may be brought
For most actions venue is proper where:
(1) Any D resides (provided all Ds also reside in the same state)
(2) Location of claim or property - substantial part of the claim arose or in which a substantial part of property that is subject to action is situation
(3) D subject to PJ (fallback) - if no fed. district can satisfy the above venue is proper in any fed. district in which any D is subject to PJ
Residency for venue purposes
People - determined by domicile
Entity with capacy to sue or be sued in its common name - any state in which it is subject to PJ
In a state with more than on district it is occasionally also necessary to determine in which district a corporation resides (using contacts).
Venue Transfer (Original District Proper)
A case may be transferred from one fed. district to another in which the case could have been filed or one to which all parties consent
Court may transfer to another fed. district cour based on interest of justice, convenience of parties and witnesses
(1) Transfer is to a fed district in which the case could have been filed or to which all parties consent
(2) Court may refuse transfer
(3) Courts discretion based on (a) public factors and (b) private factors
Venue Transfer (original district improper)
court may transfer to a proper venue in the winter of justice or dismiss the case
Venue Choice of Law
transferee court applies choice of law rules of the original court, regardless of which party sought transfer
Exception: transferee court will apply its own laws if original venue was improper or if transfer to enforce a forum selection clause
Forum Selection Clauses
case must be transferred to the indicated fed. district unless the public factors present a compelling reason not to transfer
transferee court will apply its own laws
Forum Non Conveniens
When there is a more appropriate forum for the litigation, but the case cannot be transferred there, a court may dismiss the action pursuant to the doctrine of forum non convenient
Courts will not grant FNC without finding that there is an adequate alternative forum (may stay if adequacy is in doubt)
Court evaludes based on same public and private factors as venue transfer (i.e. convenience, applicable law, etc)
Service of Process
The delivery to D by P of the summons and complaint, which satisfies notice requirements for PJ.
Subsequent papers filed with the court (e.g. motions, answers) do not require formal service
Service of Process Requirements
(1) D must be serviced with:
(a) Summons - formal notice of the suit signed by court clerk telling D when/where to appear, identifying the parties, P’s attorney, etc
(b) Copy of the complaint
(2) Timing - must be within 90 days of filing of the case (otherwise dismissed without prejudice unless P shows good cause)
(3) Any non-party aged 18 or older may serve
Methods of Service
(1) Personal Service
(2) Substituted Service - left w/ TP at D’s usual abode. TP must be of suitable age and discretion who resides at abode.
(3) Serivce upon D’s authorized agent
- receipt must be within scope of agency
- Party registering to do business in state may be required to appoint agent
(4) Any method permitted under state law
(a) state where fed court sits or
(b) where service is effected
Waiver of Service
P may request that D waives service by mailing D the complaint and formal request to waive service
(1) If D denies request or fails to respond P must serve through another acceptable method; D is then obliged to pay the cost of that service
(2) If D agrees to waive service, D extends her time to answer complaint to 60 days from the date of waiver request was served (as opposed to normal 21 days)
(3) Waiving service does not waive the right to object to venue or jx
Interlocutory injunctions
Court orders requiring a person to do or cease doing a specific action before trial while case is pending
Purpose is to prevent irreparable injury that will occur before there is a final judgment
Security - for both preliminary injunctions and TROs, movant must provide security to pay costs and damages if adverse part is wrongfully enjoined or restraied
Preliminary Injunction
Traditional 4-Part Test:
(1) Irreparable Injury (a/k/a n adequate remedy at law)
(2) Reasonable likelihood of success on the merits
(3) Balance of hardships
(4) Public interest
Notice and hearing are required for the adverse party
Appealable
Temporary Restraining Order (TROs)
Issued by the court when necessary to prevent immediate, irreparable injury to a party
(1) Not immediately appealable
(2) Expiration - no more than 14 days from issuance; court may extend for good cause or w/ consent to 28 days. Beyond that it becomes a preliminary injunction
(3) Notice is not required if moving party:
(a) provides specific facts showing immediate and irreparable injury will result before adverse party can be heard; and
(b) Certifies in writing all efforts to give adverse party notice
(4) Actual Notice - adverse party must have actual notice before they can be held in contempt for violation
Complaint
The initial pleading in a lawsuit filed by P which begins an action and gives notice to opposing parties
Requirements - Complaint must contain:
(1) Statement of jx - short and plain statement of grounds upon which the court’s jx depends
(2) Statement of the claim - Short and plain statement of P’s claim showing entitlement to relief
Plausibility pleading standard
(A) Complaint must contain sufficient factual matter to state a claim that is plausible on its face
(B) Allegations are accepted as true
(C) Plausibility means factual content that allows the court to draw the reasonable inference that defendant is liable
(D) Plausibility is more than possibility but less than probability
(E) Judges are encouraged to use their judicial experience and common sense
(3) Demand for Judgment - description of the relief sought
Answer
Response to the complaint, in which D states defenses to each claim asserted and admits or denies each count of P’s complaint
- Defenses can be pleaded in the alternative
- Timing - must be filed within 21 days of SoP or 14 days after rule 12 motion is denied or postponed
Answer Requirements
(1) Respond to allegations of complaint
- admit
- deny (failure to do so may constitute admission)
- lack sufficient information to admit/deny
(2) Raise Affirmative Defenses (certain defenses may be waived if not pleaded in answer)
- Contributory neg
- Claim preclusion
- Statute of Frauds
- Fraud
- Statute of Limitations
- Self-Defence
- Res Judicata
(3) Counter-claims
- may be compulsory or permissive
Rule 12(b) Motion
D may attack the validity of P’s complaint through a Rule 12 motion
12(b) defenses:
(1) Lack of SMJ
(2) Insufficiency of SoP
(3) Lack of PJ
(4) Failure to state a claim
(5) Improper Venue
(6) Failure to join a necessary party
(7) Insufficiency of process
Rule 12(b) defenses may be raised by motion or in the answer
These defenses are WAIVED if not included in D’s first response
Motion for more definitive statement (Rule 12(e))
If the complaint is so vague or ambiguous that D cannot reasonably prepare a response, D may move for more definitive statement from P
Motion to strike (12(f))
D may move to strike from the complaint (or court may strike on its own) any redundant, immaterial, impertinent, or scandalous material
Motion for judgment on the pleadings (12(c))
P or D may move for judgment on the pleadings when the complaint plus the answer reveal that one party must win
e.g. D’s answer admit allegations in P’s complaint; P must win
Counterclaim
An offensive claim, either compulsory or permissive, usually raised by D against P, which may be pleaded in D’s answer to the complaint
Compulsory Counterclaim
Same transaction or occurrence
(1) Claim by D against P that arises from the same T/O as one of the P’s claims
(2) Required to be put in the answer otherwise waived
Permissive Counterclaim
different T/O
Claim by D against P that does not arise from the same T/O as any of P’s claims
Not required in the answer and may be filed in a separate action
Cross-Claims
Offensive claims asserted by a co-party against another co-party
Requirements:
(1) Same T/O
(2) Never compulsory unlike counterclaims stemming from same T/O
(3) Although claim preclusion would not apply, issue preclusion might make it difficult to successfully litigate a cross-claim separately
Jurisdiction: There must be an independent basis for SMJ
- Cross-Claims will almost always satisfy supplemental Jx requirements because they must arise from the same T/O
Amending Pleadings
Parties may amend their pleadings once, as a matter of course.
Additional amendments may be granted with consent of other parties or court permission (amendment without right)
Amendment as a Matter of Course
may occur either:
(1) within 21 days after service, or
(2) if the pleading is one which requires a response, within 21 days of service of the responsive pleadings or pre-answer motion (e.g. a Rule 12 motion)
Amendment without right
party may only amend with either:
(1) Written consent of the adverse party, or
(2) Leave of court (i.e. court’s permission) - sought by motion
Leave will be granted freely when justice required (lenient standard)… Court looks to:
(1) Length of and reasons for the delay
(2) Potential prejudice to parties; and
(3) Futiliy of amendment
Amended Pleadings: Relation Back
The relation back doctrine applies when a party amends a pleading to add a new claim or D after the statute of limitations has run
Effect - if allowed to relate back, the amended pleading will be treated as if it was filed when the original pleading was file
Relation Back Requirements
(1) New Claim - amendment will relate back if the new claim concerns the same conduct, transaction, or occurrence as the original pleading
i.e. the new claim is based on the same general set of facts as the original pleading
(2) New or Substituted D - amendment will relate back if:
(A) Amendment concerns the same conduct, transaction, or occurrence as original pleading AND
(B) Within 90 days of filing of the original pleading:
- New D knew of or received notice of the action; and
- New D knew or should have known that but for a mistake she would’ve been named originally
Rule 11 Certification
Rule 11 requires the attorney or pro se party to sign all pleadings, written motions, and other papers
Certification - signature acts as certification that to the best of the signor’s knowledge after all reasonable inquiry taken
(1) Filing is not for an improper purpose
(2) Non-frivolous legal contentions made are warranted by law or non-frivolous arguments to change law; and
(3) Factual contentions have evidentiary support or are likely to have evidentiary support
Rule 11 Sanction
Court may issue sanctions for violations either on the court’s own initiative or an opponent party’s motion
(1) Court may not impose monetary sanctions on represented parties for frivolous legal contentions (sanction attorney)
(2) Safe Harbor - Rule 11 motion is served but may not be filed with the court for 21 days creating a safe harbor
- party may withdraw offending document or otherwise remedy, but, if not remedied or withdrawn it can be filed
(3) Hearing required - court must give attorney or party a chance to be heard before imposing sanctions
The sanctions may be non-monetary, payment to court, or payment of costs to opponent
Permissive Joinder
Under permissive joinder, P seeks to join non-parties as co-Ps or co-Ds
Ps - relies on their willingness to join
Ds - lies in the hands of the P
Requirements:
(1) Same T/O
(2) Common question of law or fact
e.g. after bus accident, all injured passengers and bystanders join as Ps; common issue is driver’s negligence; other issues (e.g. damages) are tried individually for each P
Courts MUST have jx over all parties and claims
Impleader distinguished - involves joinder of non-parties by D
Compulsory Joinder
Absent parties may be forced to join a case if they are deemed required parties; named defendants threaten dismissal for failure to join a rule 19 party
An absentee must be joined, if feasible, when either
(1) Without absentee, court cannot grant complete relief (consider whether multiple suits might follow if absentee is not made a party)
(2) Absentee has legal interest that may be impaired or impeded, or
(3) Absentee has an interest that creates a risk of multiple or inconsistent rulings and obligations
The test is NOT whether joinder would be efficient. Joint tortfeasors, for example, are not necessary parties.
“Feasible” (JOINDER)
Joinder is feasible if:
(1) There is PJ over the absentee; and
(2) Joining the absentee would not destroy diversity
Required Parties (JOINDER)
If a required absentee cannot be joined, ask whether the case can proceed without the absentee or should be dismissed; the court looks at these factors:
(1) Is an alternative forum available?
(2) What is the likelihood of prejudice to the parties or others if the case goes forward?
(3) Can the court shape potential relief to avoid prejudice?
(4) Would P have an adequate remedy if the case is dismissed?
Impleader
Impleader allows D to join a non-party who may be liable to D for all or part of the claim brought by P against the original D
(1) Allows D to assert claims for indemnity, contribution, etc. against another party for the claim D is defending
(2) Contracts and laws can create these rights of reimbursement
Original D becomes a TPP. Newly joined party is a TPD.
Once TPD is joined TPD may make claims of her own against other parties so long as SMJ exists
Original P may assert claims against TPD arising from the same T/O as long as SMJ exists
Impleader Requirements
(1) Must be done within 14 days after serving answer otherwise D must get permission from the court
(2) D’s claim under impleader must be derivative (cannot claim TPD is solely liable to P)
(3) The court must have PJ over the impleaded party; and SMJ to have supplemental jx
Intervention
A non-party absentee may seek to join (i.e. intervene) in an already pending suit either as a P or D.
Intervention as a right
MUST be allowed if either:
(1) Absentee’s interest will be harmed if not joined and no existing party will adequately represent that interest, or
(2) Absentee has an unconditional statutory right
Permissive Intervention
allowed in court’s discretion if either:
(1) Absentee has a claim or defense that shares a common question of law with the underlying action,
(2) Absentee has a conditional statutory right, or
(3) Absentee is an officer or agency and an existing claim or defense relates to the ofifcer/agency or a statute, regulation, etc.
Court must also consider whether intervention will unduly delay or prejudice adjudication of original parties rights
Jurisdiction regarding Intervention
Diversity - interveners must establish independent SMJ
Supplemental jx will not cover diversity intervetion
Intervention vs. Compulsory Joinder
compulsory joinder forces absentee into suit; narrow; must be very necessary for the court to force an absentee into a case
Intervention lets absentee join suit voluntarily; more lenient
Interpleader
Interpleader allows a property holder to initiate a suit to compel multiple claimants to that property to litigate the dispute
(1) Interpleader is allowed under both fed. statute and rule 22
(2) Property holder = stake holder
(3) Other parties who want the property = claimants
(4) Stakeholder plaintiff may also make a claim to the stake
Rule 22 Interpleader
Complete Diversity Required
SMJ, PJ, and Venue requirement same as for any federal case
Statutory Interpleader
Only minimal diversity required (one claimant diverse from at least one other claimant)
AIC only must exceed $500
Nationwide jx - service is proper on anyone in the US
Venue is proper in any district where any claimant resides
Example—deceased had life insurance policy with DE corp. having PPB in CA; claimants from NJ & CA all claim interests
Rule 22 interpleader—improper b/c lack of diversity
Statutory interpleader—proper b/c NJ claimant is diverse from CA claimants
Class Actions
Under Rule 23, an individual or small group can represent a larger group (class) sharing a common interest in a lawsuit
Ps and Ds can both be classes
Class Action Requirements
To certify a class, a court must find:
(1) Numerosity - making joinder impracticable
(2) Commonality - common question of law or fact
(3) Typicality - class rep claims are typical of the entire class
(4) Adequacy - class reps will fairly and adequately protect interest of the entire class (no conflicts)
(5) Type - action must fit into 1 of 3 types
Types of Class Actions
(1) Rule 23(b)(1) - used where there would be a risk of inconsistent decisions or impairment of class interests (uncommon)
(2) Rule 23(b)(2) - allows class where suits request injunctive or declaratory relief as primary relief sought (i.e. employment discrimination)
(3) Rule 23(b)(3) - damages (most common)
Rule 23(b)(3) Requirements
(1) Predominance - common question of law or fact predominate over individual questions, and
(2) Superiority - class action is superior to other procedures to resolve the dispute
Class members have opt-out rights (binding on those who do not)
Notification required - all reasonably identifiable members of the class must be notified of pendency of the action including opt-out rights
Class Action PJ
absent class members are not required to meet minimum contacts requirement
PJ due process requirements satisfied by reasonable and adequate notice to class members, opportunity to opt out and adequate representation
Class Action SMJ
Federal Question Jx - same rules
Diversity Jx - in determining amount in controversy and citizenship court looks only to the class reps
Class Action Fairness Act (CAFA)
Separate means of obtaining SMJ in CA. Jx exists if:
(1) Any class member is diverse of any opposing party, and
(2) aggregated claims of the class exceed $5m
(3) Any D, even an in-state D, may remove
(4) Generally when most class members and primary D’s are citizens of the same state, the case will get remanded or dismissed (local stays local)
DOES NOT APPLY TO:
(1) <100 members
(2) Shareholder claims against corporate management
(3 ) Certain state securities law fraud claims
Class Action Certification
court must determine at an early practicable time whether to allow the case to proceed as a class action (i.e. certify)
If a class is certified the court must:
(1) Define the class, the class claims, issues, and defenses
(2) Appoint Class Counsel - must fairly and adequately represent the class as a whole
Certification must be appealed via interlocutory appeal before final judgment on the merits
Class Action Judgment
binding as to all absent class members, unless they opt out, if applicable
Class Action Settlement
Court must approve any settlement reached between class reps and opposing party
(1) Settlement must be fair, reasonable, and adequate
(2) Court will seek feedback from absent class members in deciding whether to approve or reject the settlement
(3) In type 3 action, court may refuse to approve settlement unless members are given second chance to opt out
Discovery Overview
Discovery involves a court-mandated process of acquiring and producing information from parties and non-party witnesses
conducted by the parties - court helps the process move forward, but does not actively participate in the exchange of information
Scope of discovery and Privileged Information are the two overarching queries.
Process of Discovery
(1) Initiating Discovery - parties must:
- Meet & Confer - discuss claims and develop a proposed discovery plan
- Initial Disclosures - disclose discoverable information, insurance, and damages information
- Scheduling - court an parties will develop scheduling order with deadlines for completing discovery
(2) Conducting Discovery - depositions, requests for production, interrogatories, requests for admission etc.
followed by expert testimony and pretrial disclosure
Conferences
Party representatives must meet and confer with each other and/or the court at various times throughout the proceeding
Mandatory Meet & Confer Conference
parties must meet at least 21 days before the scheduling conference to
(1) discuss claims, defenses and settlement; and
(2) Develop a plan for discovery
Must present a written discovery plan to court within 14 days of the meet and confer
Scheduling Conference
Conference at or after which judge issues scheduling order setting deadlines for filings of pleadings, joinder, amendments, and discovery deadlines
Pre-trial Conference
conference before the court; held as needed to move case forward and encourage settlement
(1) Final pretrial conference - may be set to finalize issues to be resolved at trial and evidence to be presented
(2) memorialized in pretrial conference order
(3) Issues not included in the pretrial conference order are generally excluded at trial
(4) Order may only be modified to prevent manifest injustice
Scope of Discovery
Material is discoverable IF
(1) Non-privileged
(2) Relevant to a claim; and
(3) Proportional to the needs of the case:
- Amount in controversy
- Importance of issues at stake in action
- Resources of parties involved
- Important of discovery in resolving issues at stake
- Whether burden or expense of proposed discovery outweighs its likely benefits
- Parties’ relative access to information
Privileged Material that is Undiscoverable
(1) Attorney-Client
(2) Work product
(3) Physician-Patient
(4) Clergy-Patient
(5) Marital
(6) Journalist-Source
(7) 5th Amendment Self-Incrimination
Work product may be discoverable upon showing of substantial need for material that is not otherwise available
Objections to discovery requests based on privilege must be stated with particularity
Mandatory Initial Disclosures
Parties must disclose:
(1) Sources of discoverable information - witnesses and documents that they may use to support claims/defenses
(2) Damages - computation of claimed
(3) Insurance - any insurance agreement that may be used to satisfy all or part of a judgment
Timing - within 14 days of parties’ mandatory meet and confer. Parties joined later must make initial disclosures within 30 days.
Duty to supplement - parties must supplement their mandatory disclosures if the produced information becomes incomplete or incorrect
Mandatory Expert Disclosures
at least 90 days before trial, parties must identify experts experts who may be used at trial and produce a report containing experts’ opinion, data used, qualifications, etc
Mandatory Pre-trial disclosures
parties must give detailed information about evidence to be used at trial at least 30 days before trial
e.g. documents to be used ad evidence, identity of witnesses to testify, etc.
Interrogatories
Written questions proposed by one party to an opposing party
Typically used to ask about identity of document and people who may have information related to claims and defenses
Deadline for response is 30 days
Requests for Production (“RFPs”)
written requests to a party to make documents, electronic documents, or other things within party’s control available to review, inspect, and/or copy
Deadline for response is 30 days after RPF served
Non-party may be compelled to produce material under subpoena
Requests for admission (“RFAs”)
requests to parties to admit the truth of discoverable information
If a party has admitted information, it does not have to be litigated at trial; opposing party can show jury the admission
Deadline for response is 30 days - responding party can admit, deny, or state that it lacks knowledge
Physical / Mental Examinations
only available through court order where a person’s physical or mental condition is an issue in the case (e.g. tort involving injury)
Must show that party’s health or condition is in controversy
If allowed, doctor-patient confidentiality privilege disappears
Depositions
Depositions are oral proceedings in which an attorney may examine any person under oath
(1) Testimony is sworn and subject to penalties for perjury
(2) Parties - notice of deposition will compel attendance
(3) Non-parties - may be deposed, but must be subpoenaed
(4) Documents subpoena duces tecum used to compel a deponent to bring documents to the deposit
Scope and Length
Scope - may cover any issue within scope of discovery
Deponent’s counsel may object to questions but doponent is still required to answer unless it is based on privilege
Length - limited to one day for seven hours.
Court approval needed to take more than 10 depositions or depose a person twice.
Privileged Material
otherwise discoverable information need not be disclosed if a privilege applies
Determined under Fed. Rules of Evidence
Attorney-Client Privilege
protects information exchanged confidentially between attorney and client
To invoke the attorney-client privilege, a party must demonstrate the communication was:
(1) Made between client and counsel
(2) Intended to be and was, in fact, kept confidential; and
(3) Was made for the purpose of obtaining or providing legal advice
Work Product Privilege
Protects material prepared by or for an attorney in anticipation of litigation
Rule - items prepared in anticipation of litigation or for trial are not discoverable unless the opposing party shows:
(1) substantial need for material; and
(2) inability without undue hardship to obtain the substantial equivalent of materials by other means
Protective orders
A court order limiting discovery of material sought by party seeking to prevent disclosure
(1) Usually used to prevent disclosure of material that is privileged, highly embarrassing, trade secret, and/or clearly outside scope of appropriate discovery
(2) The lack of proportionality of the discovery also may be raised
(3) Moving party must certify they have or have attempted to meet and confer with affected parties to resolve dispute
(4) Courts may issue protective order for good cause (can limit, condition, delay or bar discovery)
Motion to Compel
a party may move for an order compelling disclosure or discovery of requested material
(1) often arises when discoveree (i.e. party holding information) claims withheld materials are privileged
(2) motion must certify that moving party has made god faith attempt to obtain discovery absent court intervention
(3) Judge will call hearing to confer with parties regarding dispute and make decision on whether material may be withheld
Discovery Sanctions
A court may sanction parties for discovery violations, either on its own or upon a motion of a party
Grounds - court can sanction any type of failure to comply with discovery obligation or court order
- the rules impose a duty to supplement initial disclosures, interrogatory answers, responses to document requests, and requests for admission when the produce information is incomplete or incorrect
Types of Discovery Sanctions
(1) Partial Violations - less serious discovery violations (e..g party makes frivolous objections in RFA)
Court may issue order compelling discovered to respond to discovery requests; can also award costs to party for bringing motion to compel
(2) Completion Violations - wholesale violation of the rules court may
- strike pleadings, disallow evidence, establish disputed or unanswered facts as true, issue monetary sanctions, dismiss P’s case (bad faith), enter default judgment, hold disobedient party in contempt of court
- motion to compel not required before moving for sanctions
Voluntary Dismissal
P may voluntarily dismiss her case, either with or without court approval
Dismissal will be without prejudice (i.e. P can bring claims again) unless an exception applies
(1) Dismissal without leave of court - Allowed BEFORE D serves an answer or motion for SJ.
- P voluntarily dismisses by filing written notice of dismissal or stipulation signed by all parties who appeared
- Dismissal is without prejudice provided this is the first time P has dismissed the case
(2) Dismissal with leave of the court - required if there has been an answer, motion or prior dismissal.
- Court discretion
- Dismissal is without prejudice unless stated otherwise
- Second dismissal is with prejudice
- Pending counterclaim - if D has filed a CC, P cannoy voluntarily dismiss without D’s consent
Default/Default Judgment
Default Judgment against D may be entered when D fails to plead or otherwise defend a property-served complaint
Procedure: P files motion for default judgment against D
(1) Clerk enters default on docket if P shows that D failed to respond within 21 days of being served (60 if waived SOP)
Default does not automatically entitle P to recovery; clerk or judge must enter judgment of default
(2) Default Judgement by Clerk - may be entered if:
- D has not responded at all
- Claim is for money damages
- P gives an affidavit of sum owned; and
- D is not a minor or incompetent
(3) Default judgment by Court - if elements above are not met, court must enter default judgment nad court will hold a hearing on damages
D may be entitled to hearing if D has appeared at some point in response to P’s complaint. D must get 7 days notice of hearing on default motion
Recovery is limited to amount demanded
Setting
Setting Aside
Entry of Default - motion with court showing good cause, merit defense, and no prejudice to P
Default Judgment - a default judgment may be set aside like any other judgment
Failure to State a Claim & Motion for Judgment on the Pleadings
Under Rule 12, D may move to dismiss for failure to state a plausible claim or move for judgment on the pleadings due to P’s failure to bring a plausible claim
P is usually given leave to amend complaint
Difference
- Before D files answer = 12b6 motion to dismiss; court reviews sufficiency of P’s complaint alone
- After D files answer - 12c judgment on pleadings; Court reviews all pleadings
Summary Judgment
Either party may file a motion for summary judgment asking the counter to enter judgment
Must be filed no later than 30 days after the close of discovery
Moving party MUST show
(1) There is no genuine dispute of material fact; and
(2) Moving party is entitled to judgment as a matter of law
i.e. no reasonable person could find for the non-moving party based on pleadings + evidence
Evidence is to be examined in light most favorable to non-moving party
Burden shifts to non-moving party to show a triable issue exists
Alternative Dispute Resolution
Fed. Courts must have an ADR program and the FRCP actively encourages settlement through various means including mandatory settlement conferences
ADR - generally refers to any means of settling disputes outside the courtroom including arbitration and mediation
Mandatory Settlement Conference
Court-appointed advisor meets with parties privately and offers evalution of the weaknesses of their respective cases
Formal “offer of judgment”
a party defending a claim may make a formal settlement offer at least 14 days before the date set for trial
If claimant rejects settlement offer and obtains judgment less favorable than the unaccepted offer claimant must pay costs incurred by the offering party after the offer was made
Ordinarily costs do not include attorney fees, the exception involves litigation in situations where federal fee shifting statutes define fees to be part of costs.
Right to a Jury Trial
7th amend. provides the right to a jury trial in civil actions at law, but not at equity.
Demand for a jury trial may be included in any pleading within 14 days of service of the last pleading raising a triable issue
Minimum 6 jurors maximum 12
Unless the parties stipulate otherwise the verdict must be returned by at least 6 members and be unanimous
Law + Equity - Jury decides underlying facts on claim at law first; equity claims left for judge to decide
Voir Dire
jury selection process where each party may strike jurors, either for cause or through preemptory challenges
For Cause - bias, prejudice, relation to party
- unlimited
Preemptory strikes/challenges - each side has 3 which can be used for any race-neutral and gender neutral-purpose
Non-Jury Trial
parties can elect for trial on documentary evidence alone or for bench trial
Jury Instructions
parties may file requested jury instructions to be given to the jury during deliberations
(1) At close of evidence
(2) Court gives parties its proposed jury instructions before final arguments
(3) Objections
Parties must have an opportunity to object before final arguments and before instructions are given
Failrues to object waives the issue for appeal except for plain error that affects a substantially right
Jury Verdicts
court decides verdict to be used
(1) General Verdict - jury finds P or D and decides amount of damages or relief due
(2) Special Verdict - jury asked to make factual findings and court applies law to those facts
Court submits questions to jury regarding each ultimate fact and makes legal conclusions based on jury findings
Parties must object to proposed jury questions before jury deliberates
(3) General Verdict with interrogatories - court can require a general verdict and ask jury to answer specific questions concerning ultimate facts
Important to ensure jury properly considered the issues
Judgment as a Matter of Law
In extraordinary circumstances a judge can take a case from the jury and render a decision on an issue
Can occur during trial (JMOL) or after jury verdict (RJFMOL)
Court views evidence in light most favorable to non-moving party
JMOL aka Directed Verdict
(1) Can be brought by either party
(2) D can bring motion upon close of P’s evidence or all evidence. P at end of all evidence
(3) Court can grant JMOL on an issue if a reasonable jury would not have sufficient evidentiary basis to disagree as to the result
Renewed motion for JMOL aka JNOV
After court enters judgment based on jury verdict, losing party can file JNOV for entry of judgment in his favor.
Must be filed within 28 days after entry of judgment and can only be done if JMOL was originally filed
Motion for a New Trial
Either party may file a motion for a new trial if judgment was entered but serious errors occurred at trial
Must be filed within 28 days after entry of judgment
Motion for New trial v. JMOL v. JNOV - court is not directing judgment but rather saying the process should restart due to some error necessitating a do-over
Grounds for New Trial
unlimited but potential errors include:
(1) Prejudicial error e.g. judge misstates law/gives wrong jury instruction
(2) Prejudicial misconduct e.g. judge considers evidence excluded at trial
(3) Judgment against weight of evidence - jury erred in reaching verdict given the evidence before it
(4) Newly discovered evidence
(5) Excessive or inadequate damages (court cannot increase jury award); judge can order new trial or offer remittitur if convinced award is too high
remittitur - new trial or offer P a choice of taking lesser figure
Majority standard is that jruy award shocks the conscience
Motion to Set aside Judgment or Order
A court may relieve a party from judgment or a court order if any of the following issues arise:
(1) Mistake, inadvertence or excusable neglect e.g. relief from default judgment that entered against D who did not receive actual notice
(2) New evidence undiscoverable at time of trial - it existed and moving party made diligent efforts to discover and would have likely changed results
(3) Fraud, misrep, or misconduct by opposing party - established by clear and convincing evidence preventing party from fully presenting fair case
(4) Judgment is void e.g. relief from a judgment rendered by a court that lacked SMJ.
(5) Judgment has been satisfied or discharged - includes judgment based on an earlier judgment that was later revsed or vacated
(6) Any other reason that justifies relief
- catchall for extraordinary circumstances
1-3 w/in one year of entry of judgment
4-6 within reasonable time
Appellate Courts & Standard of Review
review potential errors on questions of law; highly deferential to questions of fact
(1) Questions of law - de novo (i.e. appellate court can substitute its judgment for that of trial judge)
(2) Questions of fact - will not be disturbed unless:
- non-jury decisions e.g. bench trial and clearly erroneous
- jury trials reasonable jury could not have reached the same conclusion
(3) Miexed questions of law/fact - de novo
(4) Discretionary matters (e.g. evidentiary rulings) abuse of discretion
Timing - within 30 days of entry of final judgment
Mutliple claims/parties - trial court may enter final judgment as to fewer than all of the claims or parties only on an expression determination that there is no reason fo delay
Final Judgment Rule
appeal may only be taken from a final judgment, meaning trial court has made an ultimate decision on the merits of the entire case; otherwise, appellate court lacks jx -
Exceptions –
Injunctions - entitled to interlocutory appeal
Certification of Class actions
Orders involving debatable questions of controlling law
Interlocutory Appeals
Though generally only final orders are appealable some interim (interlocutory) orders may be appealed before final judgment
Interlocutory orders reviewable as right:
(1) Injunctions
(2) Receivers
(3) Patent
(4) Property
Interlocutory Appeals Act—appellate court may hear appeal of a non-final order if trial judge certifies that the order involves a controlling issue of law with substantial ground for difference of opinion
Class Action certification or denial
Collerateral Order Exception if issue is:
(1) too distinct from merits of the case (collateral)
(2) Too important to be denied review; and
(3) Would essentially be unreviewbale if parties waited for final judgment
Extraordinary Writ
a party aggrieved by an unappealable order may seek a writ to compel or prohibit lower court action; must show irreparable harm will occur and normal route of appeal is inadequate
Claim Preclusion (Res Judicata)
A party that has had an opportunity to litigate a claim cannot re-litigate the claim once final judgment has been rendered (affirmative defense)
Requirements for new claim to be precluded
(1) Same parties
-the second case was brought by the same party against the same party (includes entities in privity with a party)
(2) Same claim
- same claims in the first and subsequent suit that refer to same transaction or series of transactions or occurrences giving rise to the action
- i.e. even if not previous raised claim can be precluded if it is suffieitnly related to prior claims
(3) Final judgment on the merits in original claim
- judgment is final even if it is being appealed
- dismissal with prejudice operates as a judgment on the merits
- technical dismissals(SMJ/PJ/Venue) are not on the merits
Issue Preclusion (Collateral Estoppel)
Prevents re-litigation of particular issues of fact or law that have been actually litigated and previously determined
Narrower than claim preclusion; does not preclude the whole claim necessarily, just the same issue
Issue must have been actually litigated - distinguish from claim preclusion, which only requires opportunity to litigate
Requirements
(1) Final Judgment on the merits - first class ended with a valid final judgment on the merits
(2) Same issue - same issue was actually litigated and determined
(3) Issue was essential the judgment - i.e. judgment would have been different in first case absent litigation on this issue
(4) Asserted against actual party to previous case
Who may Assert Issue Preclusion?
Two views:
(1) Mutuality (traditional) - only parties to prior litigation can assert
(2) Non-mutuality (modern) - Issue preclusion may be asserted by those who were not parties in their prior litigation
Defensive Non-Mutual Issue Preclusion
Non-mutual issue preclsion may be used defensively or offensively, although courts are reluctant to allow offensive use
Defensive
D seeks to prevent P from re-litigating an issue P lost in a prior suit against a different Party.
- Allowed if the party against whom issue preclusion is asserted had a full chance to litigate the issue previously
- e.g. D in second case can preclude P from re-litigating an issue P lost to another D in a prior case; this is “non-mutual” because the party asserting IP was not a party in prior litigation
Offensive Non-Mutual Issue Preclusion
P seeks to prevent D from re-litigating an issue that D previously lost in a prior suit against a different party
- Court will allow only if deemed fair after balance factors
Factors:
(1) Whether party against whom prior judgment Is asserted had full and fair opportunity to litigate
(2) Whether party could foresee multiple suits being filed
(3) Whether the party asserting IP controlled or could have joined the prior litigation
(4) There are no inconsistent judgments on the record
