Civil Procedure Flashcards
1
Q
4 broad areas of civil procedure
A
1) Forum selection = are we in the right court?
2) Procedures used in the forum court and stages of litigation
3) Appellate review
4) Claim and issue preclusion
2
Q
Personal jurisdiction
A
The court’s power over the parties
P consented to court’s PJ by filing in that court
Big question = does court have PJ over D?
3
Q
Test for determining PJ over D
A
Does D have sufficient contacts with the forum state so that exercise of PJ is fair and reasonable?
4
Q
Two step analysis for determining PJ
A
1) PJ must fall within a state statute
2) PJ must satisfy the constitution (Due Process)
5
Q
Step 1 = state statute
A
Long-arm statute = grants PJ over nonresidents who perform or cause certain things within the state
Generally require that D:
1) is present in forum state at time of service
2) is domiciled in forum state
3) has given express or implied consent to PJ OR
4) meets requirements of long-arm statute
6
Q
Step 2 = constitutional analysis
A
International Shoe test = Does D have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?
Factors for constitutionality
1) Contact
2) Relatedness
3) Fairness
7
Q
Contact for PJ test
A
There must be relevant minimum contacts between D and forum state:
1) Purposeful availment = voluntary act targeting forum
- does not have to be physical presence
2) Foreseeability = foreseeable that D could get sued in the forum
8
Q
Relatedness for PJ test
A
Does cause of action arise from or relate to D’s contacts with forum?
Test = 1) Did D’s contact CAUSE the harm to P? OR 2) Does the claim RELATE to D’s contacts with forum?
9
Q
Satisfaction of relatedness test for PJ
A
1) Related = PJ is specific and move to step 3 (fairness)
2) NOT related = General PJ required and no fairness analysis (step 3)
10
Q
General PJ
A
1) D is at home in the forum
2) D is registered to do business in the forum
3) D is served with process in the forum (tag jurisdiction)
11
Q
“At home” for individuals and corporations
A
Individuals = domicile
Corporations:
1) state of incorporation
2) state of principal place of business (PPB)
12
Q
Fairness for PJ test
A
ONLY in specific PJ cases
Three factors for fairness:
1) burden on D and witnesses to litigate in forum state
- difficult burden to meet (most be severe disadvantage)
- relative wealth of parties not determinative
2) state’s interest in providing a courtroom for citizens who were allegedly harmed by out of state Ds
3) Plaintiff’s interest in wanting to sue at home
13
Q
Service of process
A
D is entitled to notice they have been sued
Notice/service of process:
1) summons = formal court notice of suit and timing for response
- signed, sealed and issued by clerk of the court
2) copy of complaint
14
Q
Who can serve process?
A
Any person who:
1) is at least 18 years old AND
2) is not a party to the action
15
Q
Timing of service
A
D must be served within 90 days of the filing of complaint
- may be extended for good cause
16
Q
How to serve process on an individual in the U.S.
A
1) personal service = in-hand delivery, can happen anywhere
2) substituted service = can only be done:
- at D’s usual place of abode
- with someone of suitable age and discretion
- who resides there
3) service on agent, such as one appointed by contract
- service must be within the scope of the agency
4) state law methods:
- where the federal court sits OR
- where process is served
17
Q
How to serve process on a business in the U.S.
A
1) on an officer or a managing or general agent
2) using a method permitted by the state:
- where the federal court sits OR
- where process is served
18
Q
How to serve process on a minor or incompetent person in U.S. or parties in a foreign country
A
minor/incompetent = ONLY by a method permitted by state law where process is served
Foreign country = mail sent by clerk of American court, requiring signed receipt
19
Q
Waiving service of process
A
1) P requests waiver by mailing D notice and request to waive service
- includes copy of complaint
- two copies of waiver form
If D executes and mails waiver form to P within 30 days, D waives service of process
20
Q
Effects of waiver of service
A
Does NOT waive any defenses
Waiver is effective once P files the signed form in the court
- act as though D was served process on day P files waiver in court
21
Q
Penalty for failing to waive service
A
D pays for cost of service if they don’t waive it
22
Q
Proving service of process
A
Process server files report detailing how service was made
- BUT failure to file report does not affect validity of service
23
Q
Geographic reach of service of process
A
Process may be served
1) within state in which the court sits
2) outside that state if state law allows
24
Q
Immunity from process of service
A
If D goes to a state to appear as a party, witness, or attorney in a different civil case in that state, D cannot be served for a civil case in a court in that state
25
Service of other documents
Answer, other pleadings, motions, discovery are served but don't need to be done formally - informal mailing (or email if the parties agree) is okay
Mailbox rule = service is deemed complete when documents are mailed
26
Subject matter jurisdiction
Court's power over the case
State courts = general SMJ, except:
- patent infringement
- bankruptcy
- federal securities
- antitrust claims
Federal courts = limited SMJ
- federal question
- diversity of citizenship
27
Waiving SMJ vs PJ
PJ CAN be waived
SMJ can NOT be waived
28
Diversity of citizenship (and alienage)
1) between citizens of different states (diversity) OR between a citizen of the US and a citizen of a foreign country (alienage)
AND
2) amount in controversy exceeds $75,000
29
Complete diversity rule
Every plaintiff must be from a different state than every defendant
30
When is diversity of citizenship determined?
When the case is filed
31
Diversity/alienage wrinkles
1) a permanent resident (green card holder) is NOT a citizen of a state for diversity purposes
2) Alienage jurisdiction is withdrawn if a permanent resident is domiciled in the same state as an adverse party
32
Citizenship of a natural person
The one state in which the person is domiciled
Domicile = retained until changed
1) physical presence AND
2) intent to remain for the indefinite future
Intent = courts look to all relevant factors:
- taking a job
- buying a house
- joining civic organizations
- registering to vote
- qualifying for in-state tuition
33
Citizenship of a corporation
1) ANY state or country of incorporation AND
2) ONE state or country where it has its principal place of business (PPB)
34
Principal place of business
Where corporation's managers direct, coordinate, and control the business
The "nerve center" of the business = usually site of corporate HQ
35
Citizenship of unincorporated association
Takes on citizenships of all of its members
Limited partnership = includes citizenships of general and limited partners
36
Citizenship of decedents, minors and incompetents
Sues or is sued through a representative but the citizenship of the decedent, minor or incompetent is what's relevant
37
Citizenship for class actions
Citizenship of named representative(s) of the class is used
38
Amount in controversy
Only the claim itself is considered
- includes interest as PART OF the claim itself
- good faith allegation of P controls UNLESS it is clear to a legal certainty that more than $75,000 is not possible to recover
39
Aggregation of claims
Aggregation = adding two or more claims to meet AIC requirement
40
Aggregation for single P vs single D
A single P may aggregate all unrelated claims against a single D
Multiple Ps cannot aggregate their claims against a single D
41
Joint claims
Look to total value of claim for joint claim --> number of parties is irrelevant
this is NOT aggregation
42
Equitable relief and determining AIC
Equitable relief = Issuance of an injunction, specific performance, rescission of a contract, etc.
Two tests to determine AIC:
1) P's viewpoint = does relief requested have a value of more than $75k to the P?
2) D's viewpoint = would relief requested by P cost D more than $75k?
43
Exclusions from diversity jurisdiction
Federal courts decline actions for the following cases, even if diversity SMJ is met:
- divorce
- alimony
- child custody
- probate
44
Voluntary changes of citizenship
A P can create diversity by changing state citizenship after cause of action accrued but BEFORE suit is filed
- okay as long as change is genuine
45
Federal question
P's complaint arises under federal law
46
Well-pleaded complaint rule
Claim ITSELF must arise under a federal law --> it cannot just be a federal issue raised by the complaint
Key question = Is the P seeking to enforce a federal right?
47
Removal (and standard)
Procedure allowing D to move a case from state court to federal court
Standard = case filed in state court could have been brought in federal court
- there is diversity or FQ
48
If removal was improper,
federal court can remand case back to state court
49
How a case is removed
1) D files a notice of removal in federal court, stating ground for removal (FQ or diversity)
2) D attaches all documents that were served on her in state action
3) D serves a copy of the notice on adverse parties
4) D files a copy of the notice in state court
50
Timing of removal
D must remove no later than 30 days after service of the first paper that shows the case is removable
- usually that is service of process
51
Who must join removal?
All Ds who have been served with process must join in removal
- must be unanimous
If a later served D initiates timely removal, earlier served D may join in removal even if her 30-day period has expired
52
Limitations for removing a case based solely on diversity SMJ
1) In-state defendant rule = Case should not be removed if any D is a citizen of the forum state
2) One-year rule = case should not be removed more than one year after the case was filed to state court
- exception = D can remove after one year ONLY IF they can prove the D was originally joined to prevent removal
53
Removal venue
Case must be removed to federal court geographically embracing the state court ("court across the street")
- does not matter if this venue would have been proper under venue statutes
54
Remanding to state court
1) Motion to remand based on reason other than lack of SMJ = no later than 30 days after notice of removal filed
- failure = P waives right to remand
2) Motion to remand based on lack of SMJ = no time limit
- lack of SMJ is NEVER waived!
55
Supplemental jurisdiction
Form of SMJ --> gets CLAIMS (not cases) into federal court, even though those claims don't invoke diversity or FQ SMJ
56
Looking for supplemental jurisdiction in an additional claim
1) Look for SMJ in additional claim --> if there is SMJ over the claim, no need for supplemental jx
2) Check for supplemental jx over additional claim
57
How to invoke supplemental jx (Step 2)
1) Common nucleus test = additional claim has some factual overlap with the underlying case
- ALWAYS satisfied by same transaction or occurrence (not the same test!)
2) Limitations in diversity cases = Ps cannot invoke supplemental jurisdiction
- exception to limitation = there are multiple Ps and a claim by one of them doesn't meet the AIC requirement
58
Analyzing a supplemental jx claim
1) Does the additional claim invoke FQ or diversity jx?
- If yes, no supplemental jx needed
2) Does the additional claim satisfy the common nucleus test?
- If no, NO supplemental jx
- If yes, move on to step 3
3) Is the underlying case a diversity case or a FQ case?
- FQ = supplemental jx applies
- Diversity = limitations may apply
4) Limitation for diversity case = no supplemental jx if additional claim is asserted by a P UNLESS the P is one of multiple P's and the AIC requirement is not met
So, Ds and other non-Ps generally may use supplemental jx because limitation does not apply to them!
59
Court's discretion for supplemental jx
Court can decline supplemental jurisdiction, most likely if the original claim on which federal SMJ is based is dismissed early in the case
60
What law applies in federal court?
FQ case = federal law
Diversity case = state law
61
Erie doctrine
In a diversity case, federal courts apply federal procedural law and state substantive law
62
Applying Erie doctrine in a diversity case
1) Is there a federal law on point that directly conflicts with the state law?
- If yes, apply federal law if valid (Supremacy Clause)
2) If the applicable federal law is a FRCP, it is valid and applicable as long as it is "arguably procedural"
3) If no federal law on point, state law applies if the issue is substantive:
- conflict (or choice) of law rules
- elements of a claim or defense
- statutes of limitation
- rules of tolling SOLs
- standard for granting a new trial because of excessive/inadequate jury awards
4) If none of the above situations apply, judge must determine if the issue is substantive:
- outcome determinative = applying or ignoring the state law would affect outcome of the case
- balance of interests = does federal or state system have a strong interest in having its rule applied?
- avoid forum shopping = if state law is ignored, will parties flock to federal court?
63
Federal common law
Erie means that there is no general federal common law, but there are areas where federal courts can make up their own common law:
- international relations
- admiralty
- disputes between states
- right to sue federal officer for violating one's federal rights
64
Venue
Which federal court to bring the case to
65
Two basic choices for venue (for cases initially filed in federal court)
1) residential venue = any district where all Ds reside
2) transactional venue = district where substantial part of the claim arose or substantial part of the property involved is located
Choices do NOT apply to cases removed to federal court because of the "across the street" rule for removal
66
Transactional venue
Substantial part of claim can arise in more than one district, satisfying transactional venue in multiple districts
Examples:
1) where defective product was manufactured AND where P was injured
2) where K was entered into AND where it was to be performed
67
Ds residence for venue purposes
Human = resides where domiciled
Business = resides in all districts where subject to PJ for the case
68
Transfer of venue
Transfer = one trial court in a judicial system to another trial court in the same judicial system (horizontal movement)
Transferor = original court
Transferee = court where case is sent
- must be proper venue
- must have PJ over D
Exception to proper venue requirement = transfer to any district, even if venue is improper, IF:
1) all parties consent AND
2) court finds cause for the transfer
69
Statute #1 - Transfer from a Proper Venue
Original district is a proper venue, but transfer is based on convenience of parties and witnesses and in the interest of justice
- burden on party seeking transfer (usually D)
70
Considerations for transfer from a proper venue
Public:
1) what law applies
2) what community should be burdened with jury service
3) keeping local controversies in local courts
Private = convenience
- where are the witnesses, evidence, etc?
71
Effect of transfer from a proper venue on choice of law
Transferee court must apply the choice of law rules of the transferor court
- UNLESS transfer is to give effect to a valid forum selection clause
72
Effect of a forum selection clause on a transfer from proper venue
FSC = clause in K where parties agree that a dispute will be litigated in a particular forum
- enforced by D through a motion to transfer
1) ordinarily enforced if not unreasonable
2) only public interest factors considered for transfer
3) transferee court applies its own choice of law rules
73
Statute #2 - Original venue is improper
If the venue is improper, the court will:
1) transfer to proper venue if in the interest of justice OR
2) dismiss the case
74
Effect on choice of law when venue is improper
Transferee applies its own choice of law rules and NOT those of the transferor court
- P cannot benefit from filing in improper forum
75
Forum non conveniens
Another court is the center of gravity for the case, but it can't be transferred because the other court is in a different judicial system
Court either:
1) stays the case (holds it in abeyance) OR
2) dismisses it
76
Factors considered for FNC
Public and private factors
Other court must be available and adequate, which it usually will be unless P can get no remedy there
77
To get a case transferred from an improper venue, requesting party must...
Make a timely objection to the improper venue (in a pre-pleading motion or the answer)
If no timely objection, improper venue is considered waived
78
Content of complaint
1) statement of grounds of SMJ
2) short and plain statement of the claim showing P is entitled to relief
3) demand for relief sought
Does NOT need to allege grounds for PJ or venue
79
Details required in complaint
P must plead sufficient facts to support a plausible claim
Plausibility = judge's experience and common sense
80
Cases requiring special pleading
Fraud, mistake and special damages must be pleaded with particularity or specificity
81
D's response to complaint
Rule 12 = D must respond: 1) by motion or 2) by answer
- No later than 21 days after being served
- 60 days if service of process was waived
82
Rule 12 Motions addressing issues of form
Rule 12(e) motion = motion for more definite statement (complaint is vague or ambiguous)
Rule 12(f) motion = motion to strike redundant or immaterial things from a pleading (any party can move to strike)
83
Waivable defenses under Rule 12(b)
Defenses that are waived if not put in the first Rule 12 response (motion or answer):
1) lack of PJ
2) improper venue
3) improper process
4) improper service of process
84
Other Rule 12(b) defenses not waived
Not waived, even if not included in first response:
1) failure to state a claim
2) failure to join an indispensable party
3) lack of SMJ
85
Denial of Rule 12 motion
D must answer within 14 days of notice of denial
86
D's answer (responding to allegations)
Pleading where D responds to allegations in complaint:
1) admit some or all
2) deny some or all
3) state that she has a lack of sufficient information to admit or deny some or all
Failure to deny an allegation is an admission except regarding the amount of damages
87
D's answer (raising affirmative defenses)
Affirmative defense = injects a new fact into the case that would allow D to win
1) Statute of limitations
2) statute of frauds
3) res judicata
4) 12(b) defenses --> if not asserted, then waived
88
Right to amend pleadings
P = right to amend complaint once as of course no more than 21 days after D serves first Rule 12 response
D = right to amend answer once as of course no more than 21 days after serving it
- may include omitted 12(b) waivable defense in amendment
89
Amending pleadings after the right to amend has expired
After 21 day period has expired, amending party must seek leave of court --> court will grant leave to amend if justice so requires:
- length of delay
- prejudice to other party
- futility of amendment
90
Variance
Evidence at trial does not match what was pleaded
If other party fails to object at trial, party introducing evidence can move to amend the complaint to conform to the evidence
91
Amendment after SOL has run (relating back)
An amendment relates back if pleading concerns the same conduct, T/O as original pleading
- treat amended pleading as though it was filed when original was filed, to avoid a SOL problem
92
Amendment relating back to change a D (when wrong D was originally sued)
1) amendment concerns same conduct, T/O as original
2) D had knowledge of case so he won't be prejudiced by amendment
3) D knew or should have known that, but for the mistake, he would have been named originally
93
Supplemental pleadings
Set forth things that happened AFTER the pleadings were filed
- no right to file supplemental pleading
- must make a motion
- granting is in court's discretion
94
Rule 11
When a laywer or pro se party signs documents, they certify to the best of their knowledge or belief after reasonable inquiry that:
1) paper is not for an improper purpose
2) legal contentions are warranted by law or a nonfrivolous argument for a law change and
3) factual contentions and denials have evidentiary support
95
Continuing certification
Party makes Rule 11 certification every time they present a position to the court
96
Safe harbor provision
1) A party seeking sanctions must serve the motion on the opponent first
2) Opposing party has safe harbor of 21 days to fix problem and avoid sanctions
3) if problem not fixed, motion can be filed with the court
97
Joinder
Joinder rules define the scope of the case - how many parties and claims can be joined in one case
1) joinder must be allowed by federal rules
2) must be SMJ over the case
98
Claim joinder by P
P may join as many claims as P has against D, even if unrelated to the original claim
BUT there MUST be SMJ over EACH CLAIM
99
Claims by multiple Ps and/or against multiple Ds
Must:
1) arise from same T/O AND
2) raise at least one common question of law or fact
100
Necessary and indispensable parties
Court might force some nonparty to join in the case, usually on motion by D if:
1) absentee is necessary/required
2) absentee can be joined
3) BUT if absentee can't be joined, can the case proceed anyway?
101
Party is necessary/required when...
Three tests:
1) Court cannot accord complete relief among the existing parties
2) absentee's interest may be harmed if not joined OR
3) absentee claims an interest that subjects a party (usually D) to a risk of multiple or inconsistent obligations
Joint tortfeasors are NEVER necessary
102
Joinder of an absentee is feasible if:
1) there is PJ over the absentee AND
2) there is SMJ over claim by or against absentee
- if diversity claim, court aligns absentee as P or D based on their interests
103
If absentee cannot be joined...
the court must determine whether to proceed without the absentee or dismiss the entire case, based on three factors:
1) availability of an alternative forum
2) likelihood of harm to absentee
3) whether court can shape relief to avoid that harm to absentee
104
If court decides to dismiss the case rather than proceed without absentee, the absentee is called...
indispensable
105
Counterclaim
Any claim back against a complaining party, usually be D against P
- part of D's answer
- P must respond to the counterclaim within 21 days of service
106
Compulsory counterclaim
Arises from same T/O as P's claim
Unless D has already filed the claim in another case, he must file the counterclaim in the pending case or it is waived
107
Two types of counterclaims
1) compulsory
2) permissive
108
Permissive counterclaim
Does NOT arise from same T/O as P's claim
- NOT required to file it in this case --> can sue on the claim in a separate case
- SMJ is often the issue
109
How to assess a counterclaim question
1) determine if counterclaim is compulsory or permissive
2) If compulsory, must join
3) If permissive, is there SMJ?
4) If no SMJ, is there supplemental jx?
5) If yes, claim can be joined
110
Cross claim
Claim against a coparty
- MUST arise from the same T/O as underlying action
- NOT compulsory = it can be asserted in another case
111
Impleader
Third-party permissive claim where a defending party (usually D) is bringing in a new party
party bringing claim = third party P
new party = third party D
112
Nature/purpose of impleader claim
Used to shift to TPD the liability that the D will owe to the P
- if D is found liable to P, he will try to get TPD to pay all or part of his own liability
113
Indemnity
Shifts liability completely
- TPD must cover the full claim
114
Contribution
Shifts liability pro-rata
- TPD must cover a pro-rata portion of the claim
115
How to implead TPD into the case
D must:
1) file a third party complaint naming TPD
2) have complaint formally served on TPD
116
Right to implead
Right to implead within 14 days of serving the answer
- after 14 days, court's permission is needed
117
After TPD is joined…
P can assert claims against TPD and TPD can assert claims against P
IF they arise from the same T/O as the underlying case
Must assess each claim for SMJ:
1) FQ or diversity?
2) If no, supplemental?
3) Remember P limitation for supplemental jx if underlying case is based on diversity
118
Intervention
Nonparty absentee uses intervention to bring herself into the case, either as a P or D
- application must be timely
- can be of right or permissive
- there must be SMJ!
- if intervener is a P, P limitation applies for supplemental jx in a diversity case
119
Intervention of right
Absentee's interest may be harmed if not joined and her interest won't be adequately represented by current parties
- same test as necessary absentee
120
Permissive intervention
Absentee's claim has at least one common question of law or fact
- court has discretion to allow
- usually allowed unless it would cause delay or prejudice to someone
121
Interpleader
Applies if separate actions might result in double liability against a stakeholder
- permits stakeholder to require adverse claimants to the stake to litigate among themselves
- Rule 22 and statutory
122
Rule 22 interpleader
Requires:
1) complete diversity between stakeholder and all adverse claimants and AIC over $75,000 OR
2) a federal question claim
123
Statutory interpleader
Requires only diversity between any two contending claimants and $500 be in issue
124
Class actions
Representatives sue on behalf of a group
125
Initial requirements for a class action
All 4 must be demonstrated:
1) numerosity = too many class members for practicable joinder
2) commonality = some issue in common to all class members --> resolution will generate answers for everyone at once
3) typicality = Class rep's claims are typical of the claims of the class
4) Adequacy = Class rep will fairly and adequately represent the class
126
Types of class actions
1) Prejudice = class treatment is necessary to avoid harm to class members or non-class party
- very rare --> case with a limited fund of money
2) Injunctive or declaratory relief = D treated class members alike
- cannot seek damages
3) common question or damages = must show:
a) common questions predominate over individual questions AND
b) class action is a superior method to handle the dispute
- often use for mass torts
127
Certification of class
Court must certify case as a class action by granting the motion to certify and:
1) define the class, claims, issues or defenses AND
2) appoint class counsel, who must fairly and adequately represent the interests of the class
immediately appealable and discretionary with court of appeals
128
Notice for type 3 class action
Court must notify class members they are in a class with individual notice to all reasonably identifiable members --> must include info that they:
1) can opt out
2) will be bound by judgment if they don't opt out
3) can enter a separate appearance through counsel
129
Opt out and binding effect of class action judgment
No right to opt out of type 1 or type 2 class action
All members are bound by judgment unless in a type 3, they opt out
130
Settlement of class action
Only with approval of court, after court has given notice to class members for their feedback
131
SMJ in class actions
FQ or diversity
Diversity = only citizenship of class rep is considered and her claim must exceed $75,000
132
Class Action Fairness Act (CAFA)
Grants SMJ separate from diversity jx, if:
1) class = at least 100 members
2) any class member diverse from any D
3) aggregated claims exceed $5 million
- any D (even in-state) can remove
- local actions stay local = where most class members and primary D are citizens of the same state
133
Discovery
parties find out what other parties and witnesses know
134
Initial required disclosures
Information that each party must disclose, even without request, within 14 days of Rule 26(f) conference:
1) identities of people with discoverable information who the party may use to support her own claims or defenses
2) documents and things party may use to support claims and defenses
- must be in party's control to be disclosed
3) computation of damages if claiming monetary relief
4) insurance that might cover all or part of judgment
135
Penalty for failure to make initial disclosures
Party cannot use undisclosed material in the case unless failure to disclose was substantially justified or harmless
136
Required disclosures about an expert witness
Who may provide testimony at the trial
- NOT consulting experts
1) identity of expert witness
2) written report including:
- opinions EW will express
- bases for opinions
- EW's qualifications
- how much EW is being paid
137
Required pretrial disclosures
No more than 30 days before trial, parties must give detailed information about trial evidence, including
- identity of testifying witnesses
- all documents, ESI and other things they intend to introduce at trial
138
Discovery tools
Requests cannot be sent until AFTER the 26(f) conference
1) Deposition = live testimony under oath, given in response to questions by counsel
2) Interrogatories = written questions to be answered in writing under oath
- only sent to parties
- max 25 questions
- must be answered within 30 days
3) Request to produce = asks party to make available for review and copy documents and things to inspect and measure
4) Medical exam = requires a court order and party must show: a) health is in actual controversy and b) good cause
5) Request for admission = written request asking opponent to admit facts
- failure to deny = admission
139
Scope of discovery
Party can discover anything that is relevant to a claim or defense and proportional to the needs of the case
- broader than admissible
- must provide information harmful to your case, unless you can claim privilege or work product
140
Work product protection
Work product = material prepared in anticipation of litigation
Qualified = may be discovered if requesting party can show substantial need and undue hardship in obtaining materials in alternative way
Absolute = opinion work product can NOT be discovered
141
Enforcement of discovery rule
1) party seeks protective order
2) court compels response
3) sanctions
142
Sanctions against a party
Less than a full response:
1) move for an order compelling production
2) if violation, court can enter merits sanctions
No response = straight to merit sanctions
143
Preliminary injunctive relief
P's attempt to get a court order against D so must either:
1) do something or
2) refrain from doing something
BEFORE the case is tried
144
Temporary retraining order (TRO) vs preliminary injunction
Preliminary injunction = order that maintains status quo until trial
TRO = order that maintains status quo until the hearing on the preliminary injunction
145
Temporary restraining order
May be issued ex parte ONLY IF:
1) applicant files a paper under oath clearly showing that if the TRP is no issued, they will suffer immediate and irreparable harm
2) applicant's lawyer certifies in writing their efforts to give oral or written notice to D, or why such notice should not be required in this case
NOT immediately appealable
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If TRO is issued, applicant must...
post bond to cover other side's costs and damages caused if the restraint turns out to be wrongful
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Contents of TRO
1) state terms specifically
2) describe in detail what D must do or refrain from doing
3) state why TRO was issued
4) state why threatened injury to P was irreparable
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Duration of TRO
Cannot exceed 28 days --> 14 days plus one 14-day extension
If TRO extends beyonds 28 days, it may be treated as a preliminary injunction
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Preliminary injunction requirements
Can NOT be issued ex parte
Applicant must show:
1) irreparable harm if injunction not issued
2) likely to win on the merits
3) balance of hardship favors her
4) injunction is in the public interest
No right to have injunction issued --> matter is in court's discretion
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Additional requirements if injunction is issued
1) applicant must post bond in cased restraint was wrongful
2) must state terms in specificity
3) must describe in detail what D must do or refrain from doing
4) must state why it was issued
5) court must make specific findings of fact and separate conclusions of law
May be appealed as of right
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Voluntary dismissal without court permission
P may withdraw case without court order if D has not filed answer or motion for summary judgment
Parties may stipulate to voluntary dismissal without court order
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Voluntary dismissal with court permission
If D has filed an answer or motion, court permission is required absent a stipulation
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First voluntary dismissal is...
without prejudice = P can refile the case
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Secondary voluntary dismissal is...
with prejudice = operates as an adjudication on the merits and P can NOT refile the case
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Default
Occurs when D does not respond to complain in time (21 days after being served or 60 days if process is waived)
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Entry of default
Notation by court clerk
- does not happen automatically --> P must demonstrate that D failed to respond on time
- entry of default = cuts off D's right to respond but does NOT automatically entitle P to relief (must seek default judgment)
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Default judgment
Clerk can enter a default judgment if:
1) D has made no response at all
2) claim itself is for a sum certain in money
3) P gives an affidavit of the sum owed
4) D is not a minor or incompetent
If all of the above are not true, P must apply to court for default judgment
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Hearing for default judgment
- Judge has discretion whether to enter judgment
- D is entitled to notice of hearing if they have "appeared" in some way
- recovery is limited to what is pleading in the complaint
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Motion to set aside default or default judgment
D may move to have court set aside a default or default judgment by showing:
1) good cause (like excusable neglect) and
2) a viable defense
Trial on the merits is generally preferred
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Motion to dismiss for failure to state a claim
Rule 12(b)(6) = Tests whether case belongs in the litigation stream at all
Judge considers:
1) Only the allegation of facts in the complaint, not P's legal conclusion or any evidence
2) do those facts, if true, state a plausible claim?
3) If not, case is dismissed
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Motion for failure to state a claim AFTER D has answered is called...
A motion for judgment on the pleadings
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Motion for summary judgment
Rule 56 = used after case is filed and P has survived any Rule 12 motions
- weeds out cases in which no trial is necessary
Party moving must show that:
1) there is no genuine dispute on material fact AND
2) she is entitled to judgment as a matter of law
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Timing of motion for summary judgment
Any party can move for SJ no later than 30 days after close of discovery
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Summary adjudication
Partial summary judgment = case can go to trial on damages
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Matters considered in motion for summary judgment
Court views evidence in the light more favorable to the nonmoving party:
1) affidavits
2) declarations
3) deposition testimony
4) interrogatory answers
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Rule 26(f) conference
at least 21 days before court enters scheduling order, parties meet and confer to discuss:
1) production of required initial disclosures
2) claims and defenses
3) settlement
4) preservation of discoverable information
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Discovery plan and contents
Parties must present to court a detailed plan no later than 14 days after conference
Contents:
1) timing
2) issues of ESI
3) any problems retrieving ESI
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Right to jury trial in federal court
7th Am = right to jury trial for civil actions at law, but not at equity
- does NOT apply to states
Mixed suits of law and equity:
- facts underlying damages are tried by jury first
- then facts relating only to equity claim are tried by judge
- same fact underlying both = jury decides the fact
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Jury demand
Must be in writing no later than 14 days after service of last pleading addressing a jury triable issue
- failure to do so waives the right to a jury
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Challenges to jurors in voir dire
1) for cause challenges = parties have an unlimited number
- e.g., juror won't be impartial
2) peremptory challenges = challenge for which party states no reason
- each side gets three
- may only be used in race and gender neutral manner
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Number of jurors in federal court
6-12, unless parties agree otherwise
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Jury verdict
Must be unanimous, unless parties agree otherwise
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Jury instructions
- Jury is instructed on the law by the judge
- Parties submit proposed jury instructions to judge
- judge may hold off the record conference to discuss proposals
- must hold ON the record conference to inform parties of:
1) what instructions court will give
2) what proposed jury instructions court rejected
- objections must be made on the record and before jury is charged
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Forms of verdicts
1) General verdict = who wins and what relief if P wins
2) Special verdict = jury answers questions, not bottom line (judge decides who wins and loses)
3) General verdict with written questions = jury gives general verdict and answers specific questions
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Entry of judgment
1) General verdict = clerk enters judgment
2) Special verdict/general with written questions = judge approves judgment and clerk enters it
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Answers are consistent with each other and the verdict
Judge approves judgment
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Answers are consistent with each other but inconsistent with verdict
Judge may:
1) enter and appropriate judgment consistent with the verdict
2) tell the jury to reconsider or
3) order a new trial
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Answers are inconsistent with each other and one or more is inconsistent with the general verdict
No judgment may be entered
Court may order just to reconsider or order a new trial
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Juror misconduct
Verdict can be impeached based on external matters, like bribery of a juror or basing the verdict on investigation outside of evidence at trial
Can NOT be impeached on intrinsic matters, like what the jurors were thinking
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Bench trial
Judge must record:
1) findings of fact AND
2) conclusions of law, stated separately from findings of fact
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Entry of judgment in a bench trial
Very short - just says who wins and what relief is granted (if P wins)
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Motion for judgment as a matter of law
Directed verdict = case does not go to the jury - the judge grants the motion and enters the judgment
- motion based on evidence presented at trial
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JMOL standard
- Reasonable people could not disagree on the result
- court views evidence in light most favorable to non-moving party
- motion can be made after the opposing party has been on the issue at trial
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Renewed motion for judgment as a matter of law
Same motion as JMOL but is made AFTER trial
- if granted, court enters judgment for party that lost the jury verdict
- same standard as JMOL
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Timing and prerequisites for RJMOL
- Must be made within 28 days after entry of judgment
- Must have moved for JMOL at proper time at trial
- Must be based on same grounds as JMOL motion
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Motion for new trial
- May be granted on any non-harmless error that makes judge think there should be a new trial
- must make motion within 28 days of the judgment
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Potential reasons for granting a new trial
1) judge gave an erroneous jury instruction
2) new evidence was discovered that could not have been discovered before with due diligence
3) misconduct by juror, party, lawyer, etc.
4) judgment is against weight of the evidence
5) damages are inadequate or excessive
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Remittitur
Motion for new trial based on grounds that damages were excessive
Court offers P a choice = remit part of the damages award or go through a new trial
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Additur
Motion for new trial based on grounds that damages were inadequate
Court offers D a choice = add to the damages award or go through a new trial
Additur violates the 7th Am, so it is ONLY allowed in state courts NOT federal courts
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Offer of judgment
D can submit formal offer to settle the case up to 14 days before trial
- cost shifting provisions apply if P rejects the offer to settle and doesn't do as well at trial as the offer
- P would be liable for litigation costs incurred after offer was made
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Motion for relief from order or judgment
Motion to set aside = after judgment is entered, it's possible to obtain relief from it under certain circumstances
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Grounds and timing for motion to set aside
1) clerical error = any time
2) mistake, excusable neglect = reasonable time
- never more than 1 year
3) fraud, misrepresentation, or misconduct by opposing party = reasonable time
- never more than 1 year
4) newly discovered evidence that existed at the time of the trial but could not have been discovered with due diligence for a new trial motion = reasonable time
- never more than 1 year
5) judgment is void (e.g., no SMJ) = reasonable time
- no maximum
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Final judgment rule
Losing party has a right to appeal a court's order if it is a final judgment
Final judgment = one that determines the merits of the entire case
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How to determine if an order is a final judgment
Ask = After making this ruling, does the court have anything left to do on the merits of the case?
- If yes = not a final judgment and the order is interlocutory
- If no = judgment is final and there is a right to appeal
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Notice of appeal
Must be filed in district court no more than 30 days after entry of the judgment being appealed
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Interlocutory appeal
Allows a judgment that is not final to be appealed anyways
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Interlocutory appeals of injunctions
Orders granting, modifying or refusing preliminary or permanent injunctions are appealable AS OF RIGHT, even if order is not final
- does NOT include TROs
- BUT TRO may become a preliminary injunction if it is extended beyond 28 days --> then it may be appealed
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Interlocutory Appeals Act
Allows appeal of a non-final order if:
1) the district judge certifies that it involves a controlling issue of law
2) as to which there is substantial ground for difference of opinion AND
3) the court of appeals agrees to hear it
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Collateral order doctrine
Appellate court has discretion to hear an appeal on an issue if the issue:
1) is distinct from the merits of the case
2) involves an important legal question AND
3) is essentially unreviewable if parties await a final judgment
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Final orders when there are multiple claims or parties
District court may expressly direct entry of a final judgment as to one or more claim/party if it makes an express finding that there is not just reason to delay an appeal
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Appeals and class actions
Court of appeals has discretion to review an order granting or denying certification of a class action
- party seeking review must do so within 14 days of order
- appeal does not stop proceedings at district court unless either court says so
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Writ of mandamus or prohibition
Original proceeding in the court of appeals to compel district court to make or vacate a particular order
- not a substitute for appeal
- available only if district court is violating a clear legal duty
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Standards of review on appeal
Depend on what the court is reviewing:
1) questions of law = de novo
- no deference given to trial judge on questions of law
2) questions of fact in a bench trial = clearly erroneous
- affirmed unless findings are clearly erroneous
3) questions of fact in jury trial = reasonableness
- affirmed unless reasonable people could not have made that finding
- greatest deference
4) discretionary matters = abuse of discretion
- affirmed unless district court judge abused his discretion
- also very deferential
- includes review on whether judge gave a particular jury instruction
5) harmless error = no reversal is error did not affect the outcome of the case (harmless)
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Claim and issue preclusion
Question = whether judgment already entered (case 1) precludes litigation on any matters in another case (case 2)
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Preclusion for cases in two different judicial systems
Court in case 2 applies the preclusion law of the judicial system that decided case 1
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Analysis of a question involving 2 cases and a final judgment (preclusion)
1) start with claim preclusion
- if it applies, case 2 is dismissed
2) If it does not apply, try issue preclusion
- if it applies, litigation in case 2 is streamlined --> the established issue will not be relitigated
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Claim preclusion (res judicata) and requirements
Claimant may only sue once to vindicate a claim
1) same claimant suing same D
2) valid, final judgment on the merits
- anything not based on lack of jx, improper venue, or failure to join an indispensable party
3) Asserting the same claim = any right to relief arising from the same T/O
- minority: primary rights doctrine = separate claims for property damage and personal injuries that arise in a single event
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Issue preclusion (collateral estoppel) and requirements
An issue was litigated in case 1 and then presented in case 2 = issue not relitigated in case 2
1) case 1 ended in valid final judgment on the merits
- same as claim preclusion requirement
2) same issue was actually litigated and determined in case 1
3) issue was essential to judgment in case 1
- finding on the issue is the basis for the judgment
4) DP factor = against whom is preclusion used?
- Issue preclusion can only be used against somebody who was a party to case 1 or in privity with a party
- privity = party to case 1 represented someone who was not a party
- e.g., class action binds all members of the class even though not all class members were parties to the action
5) mutuality rules = by whom is preclusion used?
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Nonmutual issue preclusion (5th requirement)
someone who was NOT a party to case 1 tries to use IP in case 2
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Nonmutual defensive issue preclusion (5th requirement)
Being used by D in case 2
- okay as long as person it's being used against had a full chance to litigate in case 1
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Nonmutual offensive issue preclusion (5th requirement)
Being used by P in case 2
- most states do NOT allow this
- Allowed by federal common law and some states if would be fair
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Fairness factors for allowing nonmutual offensive issue preclusion
1) party to be bound had a full opportunity to litigate in case 1
2) party to be bound had a strong incentive to litigate in case 1
3) party asserting issue preclusion could have easily joined in case 1
- less likely to be allowed
4) no inconsistent findings on this issue
- multiple cases where findings were different (e.g., negligent in some cases and not in others)
