Civil Procedure

Question 1

Personal Jurisdiction: Concept

Answer 1

PJ is about the court’s power over the parties – the big question is: can plaintiff sue defendant in this state?

Question 2

Personal Jurisdiction: Two-Step Analysis

Answer 2

Two step-analysis:

(1) Satisfy a state statute, and
(2) Satisfy constitution (due process)

(Same analysis in state and federal court)

Question 3

Personal Jurisdiction: In Personam Jurisdiction (impose personal obligation on D)

Answer 3

(1) Statutory analysis: each state is free to have its own statutes for in personam jurisdiction – not testable because vary by state
(2) Constitutional Analysis: Does D have “such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and justice?
(2a) Easy cases where PJ definitely constitutional: (i) Domiciled in the forum, (ii) Consent to PJ; (iii) Voluntarily present in the forum when served with process

(2b) Factors for unclear cases:
(i) Contact: must be relevant contact between D and forum state: (1) Purposeful availment and (2) Foreseeable that D could get sued in the forum
(ii) Relatedness between this contact and P’s claim (general v. specific jurisdiction)
(iii) Fairness: whether jurisdiction would be fair or reasonable under circumstances (limited to specific jurisdiction)

Question 4

Personal Jurisdiction: Specific Jurisdiction

Answer 4

Personal jurisdiction when the claim arises from D’s contact with the forum

Determine if specific jurisdiction is fair:

(1) Burden is on defendant and witnesses to prove that the forum would put them at a severe disadvantage in the litigation (very difficult); relative wealth of parties n/a
(2) State’s interest: forum state may want to provide a courtroom for its citizens who are being harmed by out of staters
(3) Plaintiff’s interest: may be injured and wants to sue at home

Question 5

Personal Jurisdiction: General Jurisdiction

Answer 5

General jurisdiction provides personal jurisdiction over a defendant in his home forum for a claim that arises anywhere in the world

At home:

(1) Humans: at home in the state where domiciled (physically present and intent to stay indefinitely)
(2) Corporation: (a) Where incorporated and (b) where it has its principal place of business(

Question 6

Personal Jurisdiction: In Rem and Quasi in Rem Jurisdiction

Answer 6

Power is over D’s property in the forum, not D herself. Nonetheless, D’s contacts with forum must apply statutory and constitutional tests used for in personam jurisdiction.

Question 7

Subject Matter Jurisdiction: Concept

Answer 7

This is about the court’s power over the case

State courts have general subject matter jurisdiction: they can hear any kind of case, with a few exceptions (patent infringement, bankruptcy, some federal securities and antitrust claims)

Federal courts have limited subject matter jurisdiction: can only hear diversity of citizenship cases and federal question cases

Question 8

Subject Matter Jurisdiction: Diversity of Citizenship (and Alienage)- Requirements

Answer 8

Two requirements:

(1) The case is either (a) between “citizens of different states” or (b) between “a citizen of a state and a citizen of a foreign country” (alienage) AND
(2) The amount in controversy exceeds $75,000

Question 9

Subject Matter Jurisdiction: Diversity of Citizenship - Complete Diversity

Answer 9

Complete diversity rule: No good if any plaintiff is a citizen of the same state as any defendant

• A person with a green card (i.e., US permanent resident) is considered an alien. BUT diversity not satisfied in suit between green card alien and US citizen domiciled in the same state
• No diversity in a suit between a US citizen domiciled in another country and a US citizen domiciled in a US state

Question 10

Subject Matter Jurisdiction: Diversity of Citizenship - Domicile

Answer 10

Establish domicile:

(1) Physical presence in a state AND
(2) Intent to make that your permanent home (e.g., buying a house, taking a job, joining civic organizations, registering to vote, qualifying for instate tuition)

Can only have one domicile at a time, and always have one

Question 11

Subject Matter Jurisdiction: Diversity of Citizenship - Citizenship

Answer 11

(1) Natural person: Citizenship of a natural person who is a US citizen is a citizen of the state in which she is domiciled

(2) Corporation is a citizen in (a) every state or country where incorporated, and (b) the one state or country of principal place of business
- PPB is where managers direct, coordinate and control corporate activities

(3) Unincorporated association (partnership, LLC): has the citizenship of all of its members (include general and limited partners)
(4) Minors, decedents, incompetents: must sue through representative, but representative’s citizenship is irrelevant

Question 12

Subject Matter Jurisdiction: Diversity of Citizenship - Amount in Controversy

Answer 12

Plaintiff’s claim must exceed $75,000

(1) Interest: (a) Cannot count interest on the claim in the amount, but (b) can sometimes sue to recover interest as the claim
(2) Whatever plaintiff claims in good faith is okay, unless it is clear to a legal certainty that she cannot recover more than $75,000 (e.g. no punitive damages allowed so can’t count in claim)
(3) What P wins is irrelevant to jurisdiction

Question 13

Subject Matter Jurisdiction: Diversity of Citizenship - Amount in Controversy, Aggregation

Answer 13

Aggregation means adding two or more claims to meet the amount requirement

(a) Can aggregate factually unrelated claims
(b) No limit on the number of claims that can be aggregated

Question 14

Subject Matter Jurisdiction: Diversity of Citizenship - Amount in Controversy, Equitable Relief

Answer 14

Equitable relief (e.g., injunction) can satisfy the amount in controversy requirement if it meets one of two tests:

(1) Plaintiff’s view point: does the harm to plaintiff of not enjoining exceed $75,000?
(2) Would it cost defendant more than $75,000 to comply with the injunction?

Question 15

Subject Matter Jurisdiction: Diversity of Citizenship - Exclusions

Answer 15

Even if the requirements for diversity or alienage are met, federal courts decline to hear some cases:

(a) Divorce
(b) Alimony
(c) Child custody
(d) Probate and estate

Question 16

Subject Matter Jurisdiction: Federal Question

Answer 16

The claim in a plaintiff’s case “arises under” federal law, e.g., federal constitution or legislation

Question 17

Subject Matter Jurisdiction: Federal Question - Well-pleaded Complaint Rule

Answer 17

The plaintiff’s claim itself must “arise under” federal law

Question 18

Subject Matter Jurisdiction: Supplemental Jurisdiction

Answer 18

Once a case is in federal court, additional claims might be asserted in the case. Each addition claim needs to be tested for subject matter jurisdiction.

Test: If the claim does not satisfy FQ or diversity jurisdiction…

(1) There is supplemental jurisdiction if the claim arises from the same transaction or occurrence (T/O) as the underlying case
BUT
(2) By statute certain claims cannot invoke supplemental jurisdiction even if they meet the test
(3) In a diversity case, plaintiffs cannot invoke supplemental jurisdiction
BUT
(4) The limitation n/a when multiple defendants and one does not meet amount in controversy requirement

Question 19

Subject Matter Jurisdiction: Supplemental Jurisdiction - Discretion to Decline

Answer 19

Even if the supplemental jurisdiction test is satisfied, the court can decline to hear the case

Factors: state law claim is complex, state law issues would predominate the case, underlying claim was dismissed early in the case

Question 20

Subject Matter Jurisdiction: Removal - Basic Concept

Answer 20

A defendant sued in state court may be able to remove the case to federal court

If removal is improper, the court may remand the case back to state court

Question 21

Subject Matter Jurisdiction: Removal - When

Answer 21

Procedure:

(1) D must remove within 30 days of service of the first paper that shows the case is removable.
(2) All defendants who have been served must join the removal.
(3) In a diversity case, cannot remove the case more than one year after it was filed in state court (unless judge finds P acted in bad faith by joining and voluntarily dismissing a second defendant to prevent removal)

Question 22

Subject Matter Jurisdiction: Removal - What Cases

Answer 22

General rule: D can remove a case that meets the requirements for diversity of citizenship or FQ

Exceptions: only apply to diversity

(1) No removal if any D is a citizen of the forum (instate D rule)
(2) No removal more than one year after the case was filed

Question 23

Subject Matter Jurisdiction: Removal - Where to

Answer 23

D removes to the federal district court “embracing” the state court where the case was filed

Question 24

Subject Matter Jurisdiction: Removal - How

Answer 24

(1) D files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ)
(2) Federal court will hold a hearing and the burden is on the defendant to show by a preponderance of the evidence that the case satisfies SMJ
(3) D attaches all documents that were served on her in state action.
(4) D serves a copy of the “notice of removal” on the adverse parties. Then she files a copy of it in state court.

Question 25

Subject Matter Jurisdiction: Removal - Plaintiff’s Motion to Remand

Answer 25

Plaintiff can move to remand a case to state court she thinks was improperly removed

(1) If P thinks improper for some reason other than SMJ, must move to remand no later than 30 days after notice of removal filed in federal court
(2) If P thinks improper because lack of SMJ, can move to remand any time

Question 26

What law applies in federal court: Erie Doctrine

Answer 26

In a diversity case, judge decides which law to apply by:

(1) Ask: is there some federal law (e.g., constitution, FRCP) on point that directly conflicts with state law? If so, apply federal law (Supremacy Clause) so long as it is valid.
(a) Federal law is valid if it does not modify substantive rights (i.e. arguably procedural)

(2) If there is no federal law on point, federal judge must apply state law IF the issue to be determined is substantive.
- Clearly substantive:
(a) Elements of a claim or defense
(b) Statutes of limitations
(c) Rules for tolling statutes of limitations
(d) Conflict (or choice) of law rules

(3) If no federal law on point and not a clearly substantive issue, federal judge must determine whether the issue is substantive. Law is not clear, weigh factors:
(a) Outcome determinative: would applying or ignoring the state rule affect outcome? If so, probably substantive
(b) Balancing of interests: does either federal or state system have a strong interest in applying its rule?
(c) Avoid forum shopping: if federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, probably apply state law

Question 27

What law applies in federal court: Federal Common Law

Answer 27

Federal courts can make common law in the following areas (among others):

(1) Fill in statute of limitations if missing from federal law
(2) International relations
(3) Admiralty
(4) Disputes between states
(5) The right to sue a federal officer for violating one’s federal rights

Question 28

Venue: Basic Idea

Answer 28

Venue tells us exactly which federal court can take the case.

Question 29

Venue: Basic Choices

Answer 29

P may lay venue in any district where:

(1) All defendants reside (all D live in different districts in one state, venue is proper in any district in that state), or
(2) Where a substantial part of the claim arose

Question 30

Venue: Defendant’s Residence

Answer 30

(1) A human reside in the district where he is domiciled
(2) A business (corporation or non-incorporated) resides in all districts where it is subject to personal jurisdiction in the case

Question 31

Venue: Transfer of Venue

Answer 31

A federal district court may transfer the case to another federal district court. A case can only be transferred to a court where the case could have been filed, UNLESS all parties consent and the court finds cause for the transfer.

(a) No right to transfer; entirely discretionary. Burden on person seeking transfer to show public (applicable law, affected community, local controversy in local court) and private (evidence, witnesses) factors that demonstrate transferee is central
(b) Proper venue: if original district has proper venue, court can order transfer on basis of convenience (parties, witnesses) and interest of justice
(c) Improper venue: if original district has improper venue, court may transfer or dismiss

Transferor: original court
Transferee: court that receives the case

Question 32

Venue: Forum Non Conveniens

Answer 32

Court can (a) dismiss or (b) stay the case if the more convenient court is in a different judicial system (e.g., foreign country)

Court considers public (applicable law, affected community, local controversy in local court) and private (evidence, witnesses) factors

Other court must be available and adequate, i.e. will Plaintiff get his day in court

Question 33

Service of Process: Basic Idea

Answer 33

D is entitled to notice that she has been sued. Usually, this consists of (1) summons (formal court notice of suit and time for response) and (2) a copy of the complaint

Question 34

Service of Process: Who can serve process

Answer 34

Any NONPARTY who is at least 18 years old

Question 35

Service of Process: How is Process Served

Answer 35

Basic Choices - No preference

(1) Personal service: Papers are given to D personally, anywhere
(2) Substituted service: Process is left at (a) D’s usual abode, and (b) serve someone of suitable age and discretion who resides there
(3) Service on D’s agent: Process can be delivered to D’s agent IF receiving service is in the scope of agency (e.g., corporation’s registered agent, managing agent, or officer)
(4) Can use methods for serving process permitted by state law of state federal court sits OR where service is made

Question 36

Service of Process: How is Process Served - Waiver by Mail

Answer 36

Waiver by mail:

(1) Mail to D a copy of the complaint and two copies of the waiver form, with prepaid means of returning it
(2) If D executes and mails waiver to P within 30 days, formal service waived
(3) P files waiver in court, at which point it becomes effective

If D fails to return waiver form, and then P must serve D personally or with substituted service. If D did not have good cause for failure. D must pay costs of service.

Question 37

Service of Process: Return of Service

Answer 37

Person who serves process files a report with the court detailing how service was made.

If a civilian, report is affidavit (sworn statement under oath)

If process server fails to file the report, it does not affect the validity of service

Question 38

Service of Other Documents

Answer 38

Other documents (e.g., answer, other pleadings, motions, discovery) get served by (a) delivering or (b) mailing the document to the part’s attorney or pro se party

Can be served by email if the other party agrees

If something like interrogatories are mailed, other party gets to add 3 extra days to time to respond (which begins on date of mailing)

Question 39

Pleadings: Complaint

Answer 39

Complaint commences an action

Requirements:
(1) Statement of grounds of subject matter jurisdiction (FQ or diversity)

(2) Short and plain statement of the claim, showing entitled to relief
(a) “notice pleadings”: facts supporting a plausible claim
(b) Must plead with particularity or specificity: fraud, mistake, special damages

(3) Demand for relief sought (e.g., damages, injunction, declaratory judgment)

Question 40

Pleadings: Defendant’s Response

Answer 40

Rule 12 requires D to respond either by (1) MOTION or (2) ANSWER

To avoid default, D must do one of the above within 21 days of service of process (60 days if waived service)

Question 41

Pleadings: Defendant’s Response - Motions

Answer 41

Motions are not pleadings, they are requests for a court order

Issues of form:

(1) Motion for more definite statement, so vague D can’t respond (rare)
(2) Motion to strike, which removes immaterial or scandalous thigns

Question 42

Pleadings: Defendant’s Response - Rule 12(b) Defenses

Answer 42

These defenses can be put either in a motion to dismiss or an answer: 12(b)

(1) Lack of SMJ
(2) Lack of PJ
(3) Improper venue
(4) Improper process (problem with papers)
(5) Improper service of process
(6) Failure to state a claim
(7) Failure to join an indispensable party

2 (PJ), 3 (venue), 4 (process), 5 (service)are waivable – so, must be in first rule 12 response (motion or answer), or else they’re waived

Question 43

Pleadings: Defendant’s Response - Answer

Answer 43

Answer is a pleading. D does two things in an answer:

(1) Respond to allegations of complaint: (a) admit, (b) deny, (c) state that you lack sufficient information to admit or deny (cannot use if answer is in your control, duty to investigate)
- Failure to deny amounts to admitting, except with respect to damages

(2) Raise affirmative defenses: e.g., statute of limitations, res judicata, self-defense, statute of frauds

Question 44

Pleadings: Counterclaim

Answer 44

A claim against an opposing party (for D, this is part of the answer)

After D serves counterclaim, P must respond within 21 days

Counterclaim must satisfy SMJ: FQ, diversity, or supplemental

Question 45

Pleadings: Counterclaim - Compulsory

Answer 45

Arises from the same T/O as P’s claim. Unless you have already filed the claim in another case, you MUST file this in the pending case, or else the claim is waived

Question 46

Pleadings: Counterclaim - Permissive

Answer 46

Does not arise from same T/O as P’s claim. Not required to raise it in this case, may sue on it in a separate case

Question 47

Pleadings: Crossclaim

Answer 47

A crossclaim is a claim against a co-party. It must arise from the same T/O as the underlying action, but it is not compulsory.

Must satisfy SMJ: FQ, diversity, or supplemental

Question 48

Pleadings: Additional Claims

Answer 48

Once you file a counterclaim or crossclaim (or any claim) you can join an additional claim to it, even if that claim has nothing to do with the others

Must satisfy SMJ: FQ, diversity, or supplemental

Question 49

Pleadings: Amended Pleadings

Answer 49

Four Fact Patterns:

(1) Right to amend:
(a) P has a right to amend once within 21 days after D serves her first rule 12 response
(b) D has a right to amend once within 21 days of serving his answer

(2) If there’s no right to amend, seek leave of court. It will be granted if “justice so requires.” Court considers: delay, prejudice, and futility of amendment.
(3) Variance: when evidence at trial does not match what was pleaded, at or after trial P can amend complaint to conform to evidence (or D can object that evidence is inadmissible because it is at “variance with the pleadings”)

(4) Relation back: amendment after the statute of limitations has run.
(a) To join a new claim: amended pleadings relate back (i.e. treated as if filed with original) if they concern the same conduct, transaction, or occurrence as the original pleading
(b) To change a D after SOL has run: will relate back IF: (i) concerns same conduct, transaction, or occurrence as original; (ii) new party was aware of this case within 90 days of filing; and (iii) new party also knew that, but for mistake, she would have been named originally

Question 50

Pleadings: Supplemental Pleadings

Answer 50

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

There is no right to file a supplemental pleading, it’s always at the court’s discretion

Question 51

Pleadings: Rule 11 - What

Answer 51

Applies to all documents except discovery

When a lawyer or a pro se party signs a document or presents a position to the court, she certifies that to the best of her knowledge and belief, after reasonable inquiry:

(1) The paper is not for an improper purpose
(2) The legal contentions are warranted by law (or nonfrivolous argument for law change)
(3) The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation)

Question 52

Pleadings: Rule 11 - Sanctions

Answer 52

If there is a violation, sanctions may be ordered against: party, attorney or firm

(1) Court must give prospectively sanctioned individual an opportunity to be heard
(2) If the other party violates Rule 11, cannot make a motion for sanctions immediately. Rather, can serve the motion on other party, who has 21 days to fix the problem and avoid sanctions. If she does not, then sanctions may be filed.
(3) Court can raise Rule 11 problems sua sponte, and court usually issues an order to show cause why sanctions should not be imposed

Question 53

Discovery: Required Disclosures - Initial Disclosures

Answer 53

These materials must be produced even though no one asked for them

Unless court order or stipulation says otherwise, within 14 days of rule 26(f) conference each party must disclose:

(1) Identities of persons who have discoverable info you may use to support your claims or defenses
(a) Provide name, number, subject on which they have info
(b) Failure to identify required person prevents party from using witness in case, unless substantially justified or harmless

(2) Documents and things that you may use to support your claims or defenses. May produce copies or a description of these things. ONLY applies to documents in your possession.
(a) Includes tangible things, photographs, recordings, and electronically stored information (ESI)
(b) Failure to disclosure required disclosure means cannot use in case, unless failure was substantially justified or harmless

(3) Computation of monetary relief and documents/ESI supporting it
(4) Insurance coverage: D must disclose any insurance coverage that might cover all or part of the judgment in the case (even if coverage will not be admissible at trial)

Question 54

Discovery: Required Disclosures - Expert Witnesses

Answer 54

Definition: an expert witness is someone who, because of special skill or training, may give opinion testimony.

At time directed by the court, each party must identify expert witnesses who may be used at trial (does not include EW who helped prepare but won’t testify)

Regarding these EWs, must disclose:

(1) Identity and EW’s written report
(a) Written report must include: (i) opinions EW will express, (ii) bases for the opinions, (iii) facts used to form the opinions, (iv) EW’s qualifications, and (v) how EW is being paid
(b) Earlier drafts of the report and communication with attorney are work product
(c) After this, other party may depose EW (subpoena, pay EW reasonable fee set by court)

(2) Failure to identify EW and provide required information bars party from using EW in case, unless substantially justified or harmelss

Question 55

Discovery: Required Disclosures - Pretrial Required Disclosure

Answer 55

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

Question 56

Discovery: Discovery Tools - Initial Requests

Answer 56

Assuming no court order or stipulation provides otherwise, a party can first request discovery from other parties after the Rule 26(f) conference

Question 57

Discovery Tools: Depositions

Answer 57

(1) Person gives live testimony in response to questions (usually read aloud) by counsel or pro se party
(2) Deponent testifies under oath
(3) Deposition is recorded and a transcript can be made
(4) Deponent does not need to review all relevant files prior, can testify from present recollection
(5) Notice of deposition: (a) Party: notice; (b) Non-party: subpoena, but cannot require travel more than 100 miles from where resides or works
(6) Subpoena duces tecum: requires deponent to bring requested materials with her
(7) Limits of depositions: (a) no more than 10 depositions; (b) cannot depose same person 2x without court approval; (c) deposition cannot exceed 7 hours unless court order or parties stipulate
(8) Use of depositions at trial: (a) Impeach deponent; (b) Any purpose if deponent is adverse party; (c) Any purpose if deponent is unavailable for trial, unless absence procured by party seeking to introduce evidence

Question 58

Discovery Tools: Interrogatories

Answer 58

(1) Written questions to be answered in writing under oath
(2) Can only send to parties
(3) Party has 30 days from service to respond with answers or objections
(4) Must answer from information reasonably available to you
(5) Maximum number of questions you can send to a party is 25, including subparts
(6) If answers can be found in business records and the burden of finding then would be equally burdensome to find the answers, responding party can allow requesting party to have access to the records
(7) At trial, cannot use own interrogatories; others are okay per FRE

Question 59

Discovery Tools: Requests to Produce

Answer 59

(1) These request that someone make available for review and copying documents or things, including ESI, or to permit you to enter designated property to inspect, measure etc.
(2) Person must respond in writing within 30 days of service, stating material will be produced or asserting objections
(3) Requests can only be made on parties (but can get same information from non-parties through subpoenas)
(4) If ESI, requesting party specifies the form, and other party can object

Question 60

Discovery Tools: Medical Exam (Physical or Mental)

Answer 60

(1) Must get a court order; which requires showing (a) person’s health is in actual controversy and (b) good cause
(2) Can order examination of (a) party or (b) someone in the party’s custody or legal control (narrow)
(3) Party seeking the order chooses the licensed person to perform the exam
(4) If the subject of the exam requests and obtains the report, he waives any privilege he might have concerning testimony about all examinations of that medical condition – so would have to produce reports of his own doctors concerning that condition

Question 61

Discovery Tools: Requests for Admission

Answer 61

(1) Written request that someone admit things
(2) Can only be served on parties
(3) If respondent fails to deny, he is deemed to have admitted it
(4) Responding party can only say she does not know the answer if she states she made reasonable inquiry and could not get enough to find out to admit or deny
(5) Signed under oath

Question 62

Discovery: Certification

Answer 62

Rule 11 does not apply to discovery

By another rule, every discovery request and response is signed by counsel certifying (1) it is warranted, (2) it is not interposed for improper purpose, and (3) it is not unduly burdensome

Question 63

Discovery: Duty to Supplement

Answer 63

If after you respond to discovery, circumstances in the real world change such that your response to a required disclosure, interrogatory, request for production, or request for admission is not incomplete or incorrect, you must supplement your response

Question 64

Scope of Discovery: Standard

Answer 64

(1) You can discover anything relevant to a claim or defense and proportional to the needs of the case – discoverable if reasonably calculated to lead to admissible evidence
(2) Relevant is broader than admissible at trial
(3) On a showing of good cause, the court may order disclosure of information that is relevant to the subject matter (not necessarily a claim or defense) of the lawsuit
(4) If court finds that requested discovery is “not reasonably accessible because of undue burden or cost”, party from whom document is requested may seek a protective order or P could move to compel discovery. If court finds it was not reasonably accessible, may order other side to show good cause for discovery anyway and court can order production and allocation expenses among parties

Question 65

Scope of Discovery: Privilege

Answer 65

You can object to discovery on the basis of evidentiary privilege, e.g., confidential communications between attorney and client

Question 66

Scope of Discovery: Work Product

Answer 66

(1) Definition: Work product or “trial preparation materials” is material prepared in anticipation of litigation. It is generally protected from discovery.
(2) To qualify as work product, it does not need to be generated by a lawyer. Party or any representative of the party can make work product.
(3) Qualified work product: Work product may be discoverable if the party can demonstrate: (a) Substantial need, and (b) it’s not otherwise available
(4) Absolute work product: cannot be discovered – mental impressions, opinions, conclusions, and legal theories (“opinion work product”)

Question 67

Scope of Discovery: Asserting Work Product or Privilege

Answer 67

(1) If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail.
(2) Privilege Log: a document that lists the materials protected by date, author, recipient, and privilege or protection claimed. It must be enough detail to allow the judge to determine whether the material is protected
(3) If you inadvertently produce privileged or protected material, you should notify the other party promptly. The other party must return, sequester, or destroy it, pending decision by the court about whether there has been waiver

Question 68

Enforcement of Discovery Rules: Methods

Answer 68

Three ways courts get involved in discovery disputes:

(1) Protective order
(2) Partial response to discovery request
(3) No response to discovery request

Question 69

Enforcement of Discovery Rules: Protective Order

Answer 69

(1) If the responding party thinks a discovery request subjects it to annoyance, embarrassment, undue burden or expense, or the request is cumulative and not proportional to the case, the responding party may move for a protective order
(2) Protective order must certify that the responding party tried in good faith to get the info without court involvement (asked other party to “meet and confer”)
(3) If the court agrees with the responding party, it can (a) deny discovery, (b) limit discovery, or (c) permit discovery on certain terms

Question 70

Enforcement of Discovery Rules: Partial Response to Discovery Request

Answer 70

(1) If the responding party responds to some questions but objects to others, the requesting party will make a motion to compel answers, and the court will decide whether the objections were legitimate

(2) Sanctions: Two steps
(a) Move for an order compelling party to answer unanswered questions plus costs (including attorney’s fees) of bringing motion.
(b) IF party violates the compel order, (i) “merits” sanctions plus costs (attorney’s fees for motion) and (ii) could be held in contempt for violating a court order (except for refusal to submit to medical exam)

Question 71

Enforcement of Discovery Rules: No Response to Discovery Request

Answer 71

(1) If the responding party completely fails to attend her deposition, respond to interrogatories, or respond to requests for production
(2) Sanctions: one step - “Merits sanctions plus costs (and attorney’s fees for the motion); no need to ask for order compelling answers

Question 72

Enforcement of Discovery Rules: Merits Sanctions

Answer 72

See (a) partial response and (b) no response for procedure to get merits sanctions

Choices available to the judge:

(1) Establishment order (establish facts as true)
(2) Strike pleadings of the disobedient party (as to issues in the discovery)
(3) Disallow evidence from the disobedient party (as to issues in discovery)
(4) Dismiss plaintiff’s case (if bad faith shown)
(5) Enter default judgment against defendant (if bad faith shown)

Question 73

Enforcement of Discovery Rules: Merits Sanctions - ESI

Answer 73

No merits sanctions for failure to produce ESI unless loss was intentional

If a party fails to produce ESI because it was lost in good faith, routine operation of an electronic info system, court can make orders to cure the harm if a party failed to take reasonable steps to preserve ESI

Question 74

Multiparty Litigation: Proper Plaintiffs and Defendants

Answer 74

(1) Co-plaintiffs are permissible if their claims:
(a) Arise from the same transaction or occurrence AND
(b) Raise at least one common question

(2) Co-defendants are permissible if the claims against them
(a) Arise from the same T/O AND
(b) Raise at least one common question

Question 75

Multiparty Litigation: Necessary and Indispensable Parties

Answer 75

Court may force a non-party (“absentee”) into the case if that person is necessary or required

(1) Necessary: An absentee (A) is necessary if meets any of these tests:
(a) Without A, court cannot accord complete relief among existing parties (worried about multiple suits); or
(b) A’s interest may be harmed if he is not joined (practical harm), or
(c) A claims an interest that subjects a party (usually D) to a risk of multiple obligations
* Joint tortfeasors are never necessary

(2) Joinder of necessary party: joinder is feasible if
(a) There is PJ over A and
(b) Joining A will not goof up diversity jurisdiction
- -> If feasible, court orders absentee’s joinder

(3) If A cannot be joined, court must do one of two things:
(a) Proceed without A, or
(b) Dismiss the entire case (in which case A is called indispensable)
- -> Court decides by looking at: (i) Is there an alternative forum available?; (ii) What is the actual likelihood of harm to A?; (iii) Can the court shape relief to avoid that harm to A

Question 76

Multiparty Litigation: Impleader

Answer 76

(1) Impleader definition: defending party (usually the defendant) is brining in someone new. The new party is the third-party defendant (TPD).

(2) Why: Defendant can only do this to shift all or part of the liability that he will owe to P to the TPD
(a) Impleader claim is usually for indemnity (TPD to cover all liability) or contribution (TPD to cover pro-rata portion of claim)

(3) How: (a) D files third-party complaint naming TPD and (b) Serve process on TPD
(i) Right to implead within 14 days of serving answer, after that need court permission
(ii) Assess each claim for separately for SMJ

(4) After TPD is joined, plaintiff may assert claim against TPD if same T/O
(5) After TPD is joined, TPD may assert claim against plaintiff if same T/O

Question 77

Multiparty Litigation: Intervention

Answer 77

(1) Intervention definition: non-party brings herself into the case. She chooses to come in either as P (to assert a claim) or as D (to defend a claim). Court may realign her if thinks she came in on the wrong side.
(2) Application to intervene must be timely (but no specific day limit)
(3) Intervention of right: A’s interest may be harmed if she is not joined and is not adequately represented now.
(4) Permissive intervention (rare): A’s claim or defense and the pending case have at least one common question. Discretionary with court. Usually okay unless intervention will cause delay or prejudice to someone.
(5) Test each claim for SMJ

Question 78

Multiparty Litigation: Class Action - Requirements

Answer 78

(1) Initial requirements
(a) Numerosity: too many class members for practicable joinder
(b) Commonality: Some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke
(c) Typicality: Rep’s claims are typical of those of the class, and
(d) Representative adequate: class representative will fairly and adequately represent the class

(2) Case must fit within one of three types:
(a) Prejudice: class treatment necessary to avoid harm (prejudice) either to class members or to the non-class party (rare)
(b) Class seeks an injunction or declaratory judgment because D treated class members alike (e.g., employment discrimination)
(c) Damages: (i) Common questions predominate over individual questions, and (ii) Class action is the superior method to handle the dispute (e.g., mass tort)

Question 79

Multiparty Litigation: Class Action - Certification

Answer 79

(1) Case is not a class action until the court grants the motion to certify the class.
(2) After granting motion, (a) court must define the class, (b) define class claims, issues or defenses, and (c) appoint class counsel, which must adequately and fairly represent the interests of the class

Question 80

Multiparty Litigation: Class Action - Notification

Answer 80

No notice required for Type 1 (prejudice) or Type 2 (injunction/declaratory judgment) cases

In a Type 3 case (damages), court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. Representative pays for notice.

Notice tells them various things, including:

(1) They can opt out
(2) They’ll be bound if they don’t opt out
(3) They can enter a separate appearance through counsel

Question 81

Multiparty Litigation: Class Action - Judgment

Answer 81

All members of the class, except those who opt out in type 3 case, are bound by the judgment in a certified class action case

Question 82

Multiparty Litigation: Class Action - Settlement or Dismissal

Answer 82

Parties can settle or dismiss only with court approval

Question 83

Multiparty Litigation: Class Action - Subject Matter Jurisdiction

Answer 83

Diversity jurisdiction: As long as the representative is diverse from all defendants and the rep’s claim exceeds $75,000, the class action will invoke diversity

Question 84

Multiparty Litigation: Class Action - Class Action Fairness Act

Answer 84

Grants subject matter jurisdiction separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action (of at least 100 members) if any class member (not just the representative) is of diverse citizenship from any defendant and if the aggregated claims of the class exceed $5 million.

Question 85

Preliminary Injunctive Relief: Basic Idea

Answer 85

A preliminary injunction maintains the status quo until trial

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

Question 86

Preliminary Injunctive Relief: Temporary Restraining Order

Answer 86

(1) Before getting a preliminary injunction, to maintain status quo until the hearing on the preliminary injunction, party may seek a Temporary Restraining Order (TRO)

(2) TRO can be ex parte IF
(a) Applicant files a paper under oath clearly showing that if the TRO is not issued he will “suffer immediate and irreparable harm: if he must wait until the other side is heard
(b) Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawyer, or why such notice should not be required under the circumstances

(3) If court issues TRO, applicant must post bond to cover other side’s costs and damages if it turns out TRO was wrongful
(4) TRO must state terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issues and why the threatened injury to P was irreparable
(5) Must serve D as soon as possible
(6) D can move to dissolve or modify the TRO
(7) TRO is effective for no more than 14 days (or less); if applicant shows good cause before expiration, can be extended for up to another 14 days

Question 87

Preliminary Injunctive Relief: Preliminary Injunction

Answer 87

(1) Maintains status quo until court can adjudicate the underlying claim on the merits
(2) Can never be ex parte

(3) Burden is on the applicant to show:
(a) He is likely to suffer irreparable harm if the injunction is not issued
(b) He is likely to win on the merits of the underlying case
(c) The balance of the hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued), and
(d) The injunction is in the public interest

(4) No right to an injunction - always discretionary
(5) Preliminary injunction must state its terms with specificity, describe in detail what D must do or refrain from doing, and state why it was issued
(6) In granting or denying the preliminary injunction, the court must make specific findings of fact and separate conclusions of law
(7) Grant or denial of preliminary injunction is immediately appealable

Question 88

Pretrial Adjudication: Voluntary Dismissal

Answer 88

P can make a motion for voluntary dismissal at anytime, which the court has the discretion to grant.

(1) Right to voluntary dismissal: P has right by filing “notice of dismissal,” but she must do so before D serves her answer or a motion for summary judgment
(a) If P files timely, case is dismissed without prejudice (meaning P can re-file the case) (can only do once, after that it’s with prejudice)

Question 89

Pretrial Adjudication: Default

Answer 89

If D does not respond to the complaint in time (21 days after being served, 60 days from mailing waiver if waived service), D defaults.

Default is a notation by the court clerk on the docket sheet of the case.

Question 90

Pretrial Adjudication: Default Judgment

Answer 90

The court does not automatically enter default judgment, the Plaintiff must move for it.

(1) Procedure for getting default judgment:
(a) Clerk of court can enter judgment if: (i) D made no response at all; (ii) Claim itself is for a sum certain in money; (iii) Claimant gives an affidavit of sum owed; and (iv) D is not a minor or incompetent
(b) If any of the above not true, P must apply to court for default judgment. Court will hold a hearing and has discretion to enter judgment. D only gets notice if he appeared in the case.

(2) Effect: entry of default judgment cuts off D’s right to respond
(3) Motions to set aside: D may move to have the court set aside a default or default judgment by showing good cause and a viable defense

Question 91

Pretrial Adjudication: Motion to Dismiss for Failure to State a Claim (12b6)

Answer 91

If P’s case fails to state a claim, the case can be dismissed.

In ruling on this motion, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact and asks: if the facts were true, would the plaintiff win a judgment? If the answer is no, dismiss.

Court may let P amend to try to state a claim.

Court does not look at evidence, only the complaint.

Question 92

Pretrial Adjudication: Motion for Judgment on the Pleadings

Answer 92

If D has already answered, D can file a Motion for Judgment on the Pleadings, which is the same as a motion to dismiss (except for timing)

Question 93

Pretrial Adjudication: Motion for Summary Judgment (FRCP 56)

Answer 93

Summary judgment weeds out cases in which we don’t need a trial

(1) Party can move for SJ no later than 30 days after close of discovery.

(2) Burden: Moving party must show:
(a) There is no genuine dispute on a material fact AND
(b) That she is entitled to judgment as a matter of law

(3) Grant of SMJ is discretionary
(4) Court may look at evidence when deciding. Court views evidence in the light most favorable to the nonmoving party. Pleading can only be treated as evidence if it is verified (i.e. under oath). Failure to deny in a pleading, however, can be treated as a fact for SJ.

Question 94

Rule 26(f) Conference

Answer 94

Unless court order says otherwise, at least 21 days before scheduling conference, parties “meet and confer”. They discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information.

Must present the court with a detailed discovery plan, which includes views and proposals on timing, issues about discovery of ESI

Question 95

Scheduling Order

Answer 95

Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery etc.

Question 96

Pretrial Conferences

Answer 96

Court may hold pretrial conferences to process the case and foster settlement.

Final pretrial conference will determine the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order, which supersedes all pleadings.

Question 97

Jury Trial

Answer 97

If you have a jury trial, it determines the fact and returns the verdict

Question 98

Jury Trial: Right to jury trial in federal court

Answer 98

(1) Seventh Amendment preserves the right to jury in “civil actions at law”, but not in suits at equity
(2) If a case involves equity and law, the jury decides the facts underlying the damages claim but not the equity claim. Usually the jury handles the legal claim first and then the judge handles the equity claim.
(3) Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issue. If you don’t, you waive the right to a jury.

Question 99

Jury Trial: Selection and Composition of the Jury

Answer 99

(1) Selection:
(a) Voir dire: each side can ask to strike potential jurors
(b) For cause: no limit on number
(c) Peremptory: don’t need to state a reason, but may only be used in race and gender neutral manner; generally only 3

(2) Composition:
(a) Minimum 6 jurors, maximum 12 jurors
(b) Generally all jurors participate in the verdict, unless excused for good cause
(c) Unless parties agree otherwise, verdit must be unanimous

Question 100

Jury Trial: Jury Instructions

Answer 100

Judge instructs the jury on the law

(1) Parties submit proposed jury instructions to the judge at the close of evidence (or earlier if judge says so)
(2) Before final argument and instruction, court informs parties of what instructions it will give and of its rejection of any proposed instructions
(3) Parties are allowed to make specific objections to instructions and rejections before final argument and instruction. If don’t raise then, issue is waived, unless plain error that affects substantial rights.

Question 101

Jury Trial: Types of Verdicts

Answer 101

Judge determines what verdict form the jury will use

(1) General verdict: Just says who wins, and, if P wins, what the relief is. Court then enters judgment on general verdict.
(2) Special verdict: Jury answers specific questions about the facts in dispute. Judge then reaches legal conclusions based on the facts found.
(3) General verdict with special interrogatories: jury gives a general verdict but must also answer specific questions submitted to it. Questions ensure the jury considered the important issues.

Question 102

Jury Trial: Entry of Judgment

Answer 102

(1) If jury returns GENERAL verdict, the CLERK enters the judgment
(2) If jury returns SPECIAL verdict or general verdict with special interrogatories, and the answers are consistent with each other and with the verdict, JUDGE approves the judgment and CLERK enters it
(3) If verdict shows jury did not follow instructions or it is internally inconsistent, no judgment can be entered. Court can instruct jury to reconsider or order new trial.

Question 103

Jury Trial: Juror Misconduct

Answer 103

If there is juror misconduct, a court can set aside the verdict and order a new trial.

(1) Impeached verdict: verdict may be impeached on external matters, e.g. jurors bribed, jurors did own investigation etc., and a new trial can be ordered.
(a) Non-jurors may give first-hand evidence of these things
(b) Juror cannot testify about things occurring or statements made during jury deliberations, except to show extraneous prejudicial information or outside influence

(2) New trial cannot be ordered on basis of one juror’s testimony that another juror was on drugs or lied during selection because they are intrinsic matters on which juror testimony cannot be considered
(3) Verdict will not be set aside if misconduct was harmless

Question 104

Bench Trial

Answer 104

When there is no jury, the judge determines the facts at trial. Judge must record her findings of fact on the record or in writing.

Judgment must be entered. Judgment is very short: says who wins, and, if P won, the relief awarded.

Question 105

Motion for Judgment as a Matter of Law (JMOL)

Answer 105

Applies to JURY trial

(1) What: a party can move for JMOL, and, if granted, the judge simply rules for a side.
(2) When: a party can move for JMOL after the other side has been heard at trial
(3) Like summary judgment - motion is based upon evidence presented at trial, judge views evidence in light most favorable to non-moving party

Question 106

Renewed Motion for Judgment As a Matter of Law (RJMOL)

Answer 106

Same motion JMOL, but comes up AFTER trial.

(1) Must have moved for JMOL at proper time during trial (otherwise waive RJMOL)
(2) Limited to grounds raised in JMOL
(3) Judge may grant if jury reached a conclusion that reasonable people could not have reached
(4) View evidence in light most favorable to nonmoving party, without considering credibility of witnesses
(5) Must move for RJMOL within 28 days after entry of judgment
(6) Results in taking judgment away from one party and giving it to another)

Question 107

Motion for a New Trial

Answer 107

(1) Judgment is entered, but some error at trial requires that we should start over and have a new trial.
(2) Can be based on any (non-harmless) error that makes the judge think we should have a do-over
(3) Must move within 28 days after judgment

(4) Examples:
(a) Judge gave erroneous jury instruction
(b) New evidence that could not have been gotten before with due diligence
(c) Misconduct by juror, party, lawyer etc
(d) Judgment is against weight of the evidence (serious error of judgment)
(e) Inadequate or excessive damages (shocks the conscience)

(5) Less drastic than RJMOL because new trial could still result in same party winning

Question 108

Jury Trial: Remittitur and Additur

Answer 108

To avoid a new trial on the basis of inadequate or excessive damages, the court might suggest remittitur or additur

(1) Remittitur: playing hardball with P – court can offer new trial or suggest that P accept less than jury award
(a) Okay in state and federal court
(b) Court cannot simply lower the award

(2) Additur: playing hardball with D – court can offer new trial or suggest D pay more in damages
(a) Okay in state but not in federal court (because violates 7th A)

Question 109

Offer of Judgment

Answer 109

(1) At least 14 days before trial. D can offer to settle P’s claim and P can accept and judgment will be entered for that amount.
(2) If P rejects the settlement offer, goes to trial and wins a judgment that is not more favorable than the offer, P is liable to D for D’s costs incurred after the offer was made

Question 110

Motion for relief from Order or Judgment

Answer 110

Party asks district court to set aside order or judgment entered

[Grounds –> Timing]

(1) Clerical error (e.g. default) –> Anytime
(2) Mistake, excusable neglect (including viable defense) –> Reasonable time (never more than one year)
(3) New evidence that could not have been discovered with due diligence for a new trial motion –> Reasonable time (never more than one year)
(4) Judgment is void (e.g., no SMJ) –> Reasonable time (no maximum)

Question 111

Appeal: Final Judgment Rule

Answer 111

Appeals can only be taken from final judgments, which means an ultimate decision by the trial court of the merits of the entire case

Seek appeal by filing a notice of appeal in district court within 30 days after entry of judgment

Question 112

Appeal: Interlocutory (Non-Final) Review

Answer 112

May be appealable even though not a final judgment

(1) Interlocutory orders reviewable as of right: orders granting, modifying, refusing preliminary or permanent injunctions
(2) Interlocutory appeals act: allows appeal of non-final order if (a) trial judge certifies that it involves a controlling issue of law (b) as to which there is substantial ground for difference of opinion and the (c) court of appeals agrees to hear it
(3) Collateral order exception: appellate court has discretion to hear ruling on an issue if it (a) is distinct from the merits of the case, (b) involves an important legal question, and (c) is essentially unreviewable if parties must await final judgment
(4) When more than one claim is presented in a case, or when there are multiple parties, the district court may expressly direct entry of final judgment as to one or more of them if it makes an express finding that there is no just reason for delay. The claim is then appealable.
(5) Class action: Court of appeals has discretion to review an order granting or denying certification of class action. Must seek review at court of appeals within 14 days of order. Appeal here does not stay proceedings in district court, unless district or appeals court says so.
(6) Extraordinary writ (mandamus or prohibition): an original proceeding in the court of appeals to compel the trial judge to make or vacate a particular order. Not a substitute for an appeal; available only if district court is violating a clear legal duty.

Question 113

Standard of Review by an Appellate Court

Answer 113

(1) Questions of law - De Novo: no deference to the district judge

(2) Questions of law
(a) Non-jury trial - appeals court will affirm unless the findings are clearly erroneous
(b) Jury trial - court of appeals will affirm unless reasonable people could not have made that finding

(3) Discretionary matters (e.g., whether to grant a motion to amend pleadings) - court of appeals will affirm unless the district court abused its discretion
(4) No reversal on appeal for harmless error (of law or fact)

Question 114

Preclusion: Basic Idea

Answer 114

The question is whether a judgment already entered in a case (Case 1) precludes litigation of any matters in another case (Case 2)

Question 115

Preclusion: Applicable Law

Answer 115

Use law that decided the first case

If Case 1 is litigated in federal court in KY and Case 2 is litigated in state court in OK, federal law is used to determine if there is issue or claim preclusion

Question 116

Claim Preclusion (Res Judicata)

Answer 116

You only get to sue on a claim once.

Requirements:
(1) Case 1 and Case 2 were brought by the same claimant against the same defendant

(2) Case 1 ended in a valid final judgment on the merits
(a) Unless the court said otherwise, judgment is on merits UNLESS it was based on jurisdiction, venue, or indispensable parties

(3) Case 1 and Case 2 asserted the same claim
(a) Majority: a claim is any right to relief arising from a T/O
(b) Minority: Separate claims for property damages and personal injuries because different primary rights

Question 117

Issue Preclusion (Collateral Estoppel)

Answer 117

Narrower than res judicata

Requirements:

(1) Case 1 ended in a valid, final judgment on the merits
(a) Unless the court said otherwise, judgment is on merits UNLESS it was based on jurisdiction, venue, or indispensable parties

(2) The same issue was actually litigated and determined in case 1
(3) That issue was essential to the judgment in case 1
(4) Can assert against someone who was a a party to case 1 or was in privity with a party in case 1

(5) Can be asserted by
(a) Someone who was a party to case 1 or represented by a party
(b) Nonmutual defensive issue preclusion: party asserting issue preclusion was not a party to case 1 and is D in case 2
(c) Nonmutual offensive issue preclusion: party asserting it was not a party to case 1 and is P in case 2