Civil Procedure

Question 1

What are the rules governing service of a foreign corporation?

Answer 1

Under Rule 4, service on a foreign corporation may be made in accordance with int’l treaty. If there is no treaty, service on a corp may be made:

(1) in accordance with the foreign country’s laws,
(2) as the foreign authority directs in response to a letter request for guidance,
(3) by having the clerk mail process to the defendant, with a signed receipt requested, or
(4) by any other means not prohibited by international agreement as the court may order.

Rule 4 says that method of service ordered by court must be reasonably calculated to provide the defendant with notice of the action.

Question 2

Discuss the basic idea of personal jurisdiction

Answer 2

It’s about the court’s power over the parties. Since P filed the case, court automatically has power over P. Big question is PJ over D.

Question 3

What is the two-step analysis for determining whether PJ exists?

Answer 3

1. Satisfy a state statute AND
2. Satisfy the constitution (due process)
   a. Contact (purposeful availment and foreseeability)
   b. Relatedness (general v. specific)
   c. Fairness (specific only - burden/convenience, state interest, P interest)

Analysis is the same for both federal court and state court.

Question 4

What is in personam jurisdiction, and the analysis therein?

Answer 4

When P sues to impose a personal obligation on D.

1. Statutory analysis: each state may have their own statutes for in personam jdn, won’t be tested on it. Meets this test.
2. Constitutional analysis: does D have “such minimum contacts with the forum so jdn does not offend traditional notions of fair play and substantial justice”? (Int’l Shoe)

Question 5

When will the constitutional analysis be met/not met for in personam jdn?

Answer 5

Clearly constitutional if D is:

1. Domiciled in forum OR
2. Consents OR
3. Is voluntarily present in the forum when served with process

If none of these present, assess factors: Contact, Relatedness, AND Fairness (analyze all three)

Question 6

What is the test for determining minimum contacts (under constitutional analysis for in personam jdn)?

Answer 6

1. Must be purposeful availment (D voluntary act - sent an email to P knowing P in State A is enough). Must reach out.
2. Foreseeability (that D could be sued here)

If yes, and even if no, move to relatedness.

Question 7

What is the test for determining minimum contacts (under constitutional analysis for in personam jdn)?

Answer 7

Relatedness
1. Does P’s claim arise from D’s contact with the forum?

If yes, court may uphold even if not many contacts - specific PJ is met (where the claim arises from D’s contact with the forum, it is called specific PJ). If specific, move to fairness.

If no, can get jdn under general PJ if D is AT HOME in the forum. If general PJ is met, D can be sued in forum state for a claim that arose anywhere in the world. If general, do not continue to fairness - there is PJ.

Question 8

When will a D be at home in the forum, for purposes of determining relatedness under PJ?

Answer 8

1. A human is always at home where domiciled (present + intent to remain indefinitely)
2. A corporation is always at home where incorporated (could be more than one state) AND the one state where it has its principal place of business.

Ex. Incorporated state A, PPB state B, 200 stores in state C - no general PJ in State C.

If at home, then general PJ - do NOT continue to fairness.

Question 9

What is the analysis for fairness, in determining whether PJ passes constitutional scrutiny?

Answer 9

Note: Fairness factors are only assessed for specific PJ. If general PJ is met (D at home), analysis ends.

Factors:
1. Burden on D and witness (OK unless D can show it puts her at “severe disadvantage in the litigation” - very difficult and relative wealth not determinative)
(simply being hard to travel to forum is not sufficient)

2. State’s interest
   (always true if P is citizen of forum, provide courtroom for those harmed by out-of-staters)
3. P’s interest
   (maybe interested and wants to sue at home)

Question 10

What is in rem/quasi in rem jdn?

Answer 10

Power is not over D herself, but over her property in the forum.

Property must be attached by the court at the outset of the case.

TO be constitutional, D’s contacts with forum must meet same test as above (contacts, relatedness, fairness)

Question 11

What is the basic idea about subject matter jdn?

Answer 11

After determining and deciding that P will sue D in State X (because we have gone through PJ analysis), the question is what court we go to in State X (state court or federal court).

Question 12

What type of SMJ do states have?

Answer 12

State courts have general subject matter jurisdiction - they can hear any kind of case, even most claims arising under federal law. Exceptions:
1. Cases under a few federal laws: patent infringement, bankruptcy, some federal securities and antitrust claims

Question 13

What type of SMJ do federal courts have?

Answer 13

Federal courts have limited SMJ. They can only hear certain types of cases. Two main types:

1. Diversity of citizenship (includes alienage) OR
2. Federal question

Question 14

What are the requirements for diversity of citizenship/alienage cases (within federal SMJ)?

Answer 14

Requirements:
Case is either between
1. Citizens of different states (diversity) OR
2. Between a citizen of a state and a citizen of a foreign country (alienage), AND
3. Amount in controversy exceeds $75,000 (EQUAL TO OR GREATER THAN 75,001)

Ex. If P is a US citizen domiciled abroad, can’t get alienage/diversity, b/c P isn’t domiciled in US state.

Note: the citizenship is determined at time of filing, and motivation doesn’t matter (if you moved solely for litigation), so long as intent to remain indefinitely remains.

If a US citizen has lived abroad for a long time, you can never bring a claim based on diversity b/c they aren’t citizens of any US state.

Question 15

What is the complete diversity rule, under federal SMJ?

Answer 15

No diversity if any P is a citizen of the same state as any D.

Question 16

How are LPRs domiciled in the US treated under the diversity SMJ analysis?

Answer 16

If A is admitted to US as LPR, domiciled in US, is considered an alien and not a citizen of that US state. Thus, may invoke alienage but never diversity

Exception: prohibits alienage if LPR is domiciled in the same US state as a litigant on the other side of (ex. State A citizen sues State A LPR - no alienage, no federal diversity jdn).

Question 17

How is DC treated for SMJ analysis?

Answer 17

DC is treated as a state.

Question 18

When is diversity tested under SMJ for fed jdn?

Answer 18

At the time the case is filed; don’t care what happens after case is filed (i.e. if lose diversity)

Question 19

What are the rules governing corporate citizenship, for purposes of federal diversity SMJ?

Answer 19

Citizenship in:

1. Every state/country where incorporated AND
2. The one state/country of principal place of business.

Very rare to be incorporated in more than one place.

A corporation can be a citizen of two states at same time (if incorporated and PPB in different states)

Question 20

What is the test for determining a corporation’s principal place of business?

Answer 20

PPB is where managers control, direct, coordinate corporate activities.

THE NERVE CENTER
THE HQ

NOT the place where they have major manufacturing plant, do billions of dollars worth of business.

Question 21

What is the test for determining the citizenship of an unincorporated association (such as a partnership or an LLC)?

Answer 21

Its citizenship is the citizenship of all its members.

Ex. if there are 18 partners in 18 states, citizenship in 18 states.

Doesn’t matter where formed or where PPB.

If limited partnership, include all partners (including general and limited partners)

Question 22

How does one determine the citizenship of decedents, minors, incompetents for purposes of federal SMJ through diversity jdn?

Answer 22

Such persons must sue or be sued through a representative because they lack capacity. Representative’s citizenship is irrelevant; use the citizenship of the decedent/minor/incompetent.

Question 23

How does one calculate the amount in controversy requirement for diversity jdn?

Answer 23

P’s claim must EXCEED 75k, can’t be exactly 75k.

Do NOT include costs or interest on the claim, look only to the claim itself.

Can’t count interest on the claim (unless you’re suing for interest as the claim itself).

Whatever P claims in good faith is OK unless it is clear to a legal certainty that she cannot recover 75k (ex. claiming punitive damages where statute says this claim can never have punitive damages).

If wins less than 75k, may have to pay litigation costs (filing and discovery fees).

Question 24

What is aggregation, as it relates to the amount in controversy requirement?

Answer 24

Adding two or more claims to meet the amount requirement.

Adding claims of ONE plaintiff against one defendant are OK, even if factually unrelated (and no limit on number of claims that may be aggregated).

Ex. P1 and P2 can’t combine suits to meet amount in controversy.

With joint claims (multiple Ds), the number of parties is irrelevant (use total value of claim, even if multiple joint tortfeasors)

Question 25

What is the test for determining amount in controversy in a case involving equitable relief?

Answer 25

Two tests, if either is met then OK:

1. Plaintiff’s viewpoint - does it decrease value by more than 75k?
2. Defendant viewpoint -would it cost D more than 75k to comply with injunction?

Question 26

What are some cases in which even if the diversity requirements are met, federal courts decline to hear them?

Answer 26

Divorce, alimony, child custody, probate, estate.

CAN hear allegations of abuse (all family law isn’t excluded0

Question 27

What are the requirements for meeting “federal question” test, such that there is federal SMJ over a claim?

Answer 27

Must “arise under” federal law (federal constitution, legislation)

Well pleaded complaint rule: Federal question must appear as part of plaintiff’s cause of action. It isnot enough that some federal issue is raised by complaint; the claim itself must arise under federal law. Ask only: is P enforcing a federal right?

Note: if P sues on basis that a federal right should not be conferred on her/should not apply, is not invoking federal right and cannot bring.
Note: if the federal question is raised by the defendant as a defense to plaintiff’s claim, that will not be proper federal question jdn.

Citizenship, amount in controversy is irrelevant.

Question 28

What’s the basic idea over testing whether additional claims may be asserted in the case?

Answer 28

Includes added claims, counterclaim, cross claim, inpleader.

Must test EACH additional claim for federal SMJ (diversity or FQ). If doesn’t satisfy, fed court may still hear if it involves supplemental jdn.

Question 29

What is supplemental jdn?

Answer 29

Case is already in federal court under diversity or FQ. Supplemental jdn gets added CLAIMS in the case, even though the claims do not meet diversity of citizenship or FQ.

Question 30

What is the test for supplemental jdn?

Answer 30

1. Claim must share a “common nucleus of operative fact” with the claim that invoked federal SMJ, such that a plaintiff would ordinarily be required to try them all in one judicial proceeding.

Will always be met when the claim arises from the same transaction/occurrence of the underlying case.

Discretionary! Judges do not have to honor this.

Question 31

What is the limitation on supplemental jdn?

Answer 31

By statute, certain claims cannot invoke supplemental jdn even though they meet the test.

Limitation: In a diversity case, claims by plaintiffs cannot invoke supplemental jdn, unless there are multiple plaintiffs, one of whom does not meet the amount in controversy requirement.

Notes:

Limitation ONLY applies in diversity cases (there is no limitation on adding supplemental jdn to federal question cases).

Limitation DOES NOT apply to defendants.

One EXCEPTION to the limitation: where there are multiple plaintiffs and one of them does not meet the amount in controversy requirement, can invoke supplemental jdn.

ALSO: Once one claim satisfies the requirements
for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. However, for cases based solely on diversity, supplemental jurisdiction is not available for claims
against persons made parties under the impleader rules when use of supplemental jurisdiction would be contrary to the requirements of diversity jurisdiction.

Question 32

Do courts have discretion to decline supplemental jdn?

Answer 32

Yes - even if we meet requirements for SJ, court has discretion to decline if the state law claim is complex or state law issues would predominate the case.

More likely - can decline if the underlying claim was dismissed early in the case.

Question 33

What is removal?

Answer 33

D sued in state court can remove the case to federal court. Removal transfers the case from a state trial court to a federal trial court. If removal was improper, then the federal court can remand the case back to the state court.

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

Question 34

When may removal occur?

Answer 34

D must remove within 30 days of service (not filing) of the first paper that shows the case is removal (usually, within 30 days of service of process).

Alternatively, if a case was not originally but BECOMES removable (i.e. you gain complete diversity), can remove, but not if it has been more than a year since the case commenced in state court.

Question 35

Who must join in the removal?

Answer 35

All defendants served with process.

This means that D1 may remove the entire case, so long as D2 has also been served.

Question 36

What types of cases may be removed to federal court?

Answer 36

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

Two major exceptions (only applicable when removing on the basis of diversity of citizenship):

1. No removal if any D is a citizen of the forum (in-state defendant rule) and
2. No removal more than a year after the case was filed in state court.

Question 37

What are the procedural steps for a defendant to remove to federal court?

Answer 37

D files “notice of removal” in federal court, need not get permission. Notice states grounds of removal (federal SMJ).

In many cases, even if P does not make out a full claim for federal SMJ (i.e. claims exactly 75k), D will not be limited to P’s pleading. In this situation, federal court holds a hearing and the burden is on D to show by a preponderance of the evidence that the diversity or FQ requirements are met

1. D attaches all documents served on her in the state action
2. Serves a copy of the “notice of removal” on adverse parties
3. Files a copy of the notice of removal in state court.

Question 38

What are P’s options if she thinks the case should not have been removed?

Answer 38

Moves to remand to state court.

If P thinks removal was improper for some reason other than lack of SMJ (procedural issue) (e.g. D did not attach relevant papers to notice, in-state D), must move to remand no later than 30 days after notice of removal FILED in federal court.

If P thinks improper b/c of lack of SMJ, can move to remand to state court at any time.

Question 39

What does the Erie doctrine help to determine?

Answer 39

Once in federal court, what law applies?

Here, there is a diversity of citizenship case in fed court. the Federal judge must decide a particular issue. When she decides that issue, the question is whether she must follow state law or is free to ignore the state.

In diversity jdn, a federal court will apply state substantive law and federal procedural law. In federal question cases, the federal court applies both federal substantive and federal procedural law, because the Erie doctrine does not apply.

Question 40

What is the overview of the Erie doctrine test (three possible steps)?

Answer 40

1. Is there some federal law on point that directly conflicts with state law? If yes, apply the federal law so long as it is valid (does not modify substantive rights; is arguably procedural - always met).
2. If there is no federal law on point, federal judge must apply state law if the issue to be determined is substantive (elements of claim or defense, SOL and rules for tolling them, conflict/choice of law rules)
3. If there is no federal law on point, and the issue is not clearly substantive, the federal judge must determine whether the issue is substantive (outcome determinative, balancing interests, avoid forum shopping)

Question 41

What are examples of a federal law on point, for purposes of Erie Doctrine step 1?

Answer 41

Federal constitution, statute, FRCP, FRE.

Supremacy Clause says that these are applied.

Question 42

What are the four areas of law that are clearly substantive, for purposes of Erie step 2?

Answer 42

1. Elements of a claim or defense
2. Statute of limitations
3. Rules for tolling SOL
4. Conflict (or choice of law) rules.

On these four issues, federal court applies state law

Question 43

What are the factors applied at Erie Step 3, for purposes of determining whether an issue is substantive?

Answer 43

1. Outcome determinative - would applying or ignoring the state rule affect the outcome of the case? If so, probably substantive.
2. Balancing of interest - does federal/state system have strong interest in having its rule applied?
3. Avoid forum shopping - if this will cause parties to flock to fed court, should probably apply state law.

Question 44

What does the Erie doctrine mean for general federal common law?

Answer 44

Erie means there is no general common law. General CL of contracts, torts, property is state law - fed courts must apply state substantive law in a diversity case.

Exceptions (areas in which fed courts can make up common law)

1. Congress passes statute that creates new claim but fails to provide SOL for that claim. Fed courts can make up federal CL, fill in gap.
2. Int’l relations
3. Admiralty
4. Disputes between states
5. Right to sue a federal officer for violating one’s federal rights

Question 45

What is the basic idea behind venue?

Answer 45

Subject matter jdn tells us we can take a case to federal court. Venue tells us exactly which court.

Question 46

Where may P lay venue, generally?

Answer 46

P may lay venue:

1. In any district where a defendant resides if all the defendants reside in the same state, (subject to special rule) OR
2. In the state where a substantial part of the claim arose (COA arose).

D can also waive proper venue. P can’t lay venue where P lives.

Same rule for both diversity case and federal question case

Also if there is no district anywhere in the United States which satisfies the first two requirements, venue is proper in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action

Question 47

What is the special rule re: laying venue where all D’s reside?

Answer 47

If all defendants reside in different districts of the same forum state, P can lay venue in any district that any D resides in.

Question 48

Where do defendants “reside” for venue purposes?

Answer 48

A human resides in the district where domiciled.

A business (corporation or non-incorporated) resides in all districts where subject to personal jdn for the case (could be very broad)

Note: if a defendant is foreigner, can sue in any district court where the state could would be proper

Question 49

What is the idea behind transfer of venue?

Answer 49

A federal district court may transfer the case to another federal district court. The original court is the “transferor,” and the one to which the case is sent is the “transferee.”

Note: it can only transfer to the district where the case could have been filed. This means that transferee must be proper venue and have personal jdn over D.
Exception: court can transfer to any district (even an improper venue) if all parties consent and court finds cause to transfer.

Question 50

What rules govern transfer, when the original district is a proper venue?

Answer 50

The court may discretionarily order transfer based on the convenience of parties and witnesses, and on the interest of justice.

TEST: transfer is permitted to either

(i) another district where the action might have been brought or
(ii) a district to which all parties have consented.

Transferee (new court) applies law the transferor would apply.

Because transfer overrides P’s choice of forum and because P chose a proper venue in the first place, burden is on the person seeking transfer.

Factors in deciding transfer: public and private factors showing that transferee is center of gravity
Public: what law applies, what community should be burdened with jury service, desire to keep local controversies in local court
Private: convenience (where evidence and witnesses are)

Note: a valid forum selection clause holds weight; court will almost always transfer to that district. Parties are agreed that the private factors support litigation there. There, the transferee does NOT apply the law of the transferor.

Question 51

What rules govern transfer, when the original district is an improper venue?

Answer 51

Court may either transfer in the interest of justice or dismiss

Question 52

What is forum non conveniens?

Answer 52

When there is another court that is the center of gravity that makes more sense than the present court. Here, however, court does not transfer to the other court - it either stays or dismisses the case.

Stay case - hold in abeyance. Just sits there.

This would happen when transfer is impossible, in a different judicial system. Note: other court must be available and adequate (“get their day in court” - low bar)

Decision is based on the same public/private factors as transfer above. Requires strong showing.

FNC dismissal is almost never granted if P is resident of present forum.

Question 53

What documents comprise the service of process?

Answer 53

1. Summons (formal court notice of suit and time for response), and
2. Copy of complaint

Question 54

Who can serve process?

Answer 54

Any non-party who is at least 18 years old.

Process server need not be court-appointed

Question 55

What are the major choices in how to serve process?

Answer 55

1. Personal service (D personally, anywhere at all)
2. Substituted process OK if: D’s usual abode AND serve someone of suitable age and discretion who resides there (doesn’t need to be every day of year residence so long as like more than half, but summer home only in summer)
3. Service on D’s agent (OK if receiving service is in the scope of agency)
4. Other methods of serving process permitted by the state law of the state where fed ct sits or where services is made (ex. state law mail service provision), SO LONG AS that method is constitutional (reasonably calculated to give defendant notice of the action)

In fed court, can use substituted or agent service even if personal service would be possible.

Question 56

What is waiver by mail, w/r/t service of process?

Answer 56

1. Mail D a copy of complaint and 2 copies of waiver form, prepaid means of returning.
2. If D executes and mails waiver form to P within 30 days, D waives formal service of process.
3. Once P files the waiver, it becomes effective at moment of filing.
4. If D does not return waiver form and P then serves D personally/substituted service, D must pay cost of service if no good cause for failing to return waiver forum.

If D waives formal service of process, does not waive any defenses (e.g. lack of PJ).

Question 57

What is the Return of Service?

Answer 57

A person who serves process files report with court detailing how service was made. If server was civilian, report is by affidavit (sworn statement under oath).

If process server fails to file report, it does not affect validity of service, though it may make it harder to prove (maybe need a hearing)

Question 58

How are other documents other than the summons/complaint served?

Answer 58

Served through delivery or mailing. Email upon agreement.

Interrogatories - service complete when mailed, other party has 30 days to respond + 3 days for mail.

Question 59

What is a complaint, and what are the requirements for its contents?

Answer 59

This commences the action.

Requirements:

1. Statement of grounds of SMJ
2. Short and plain statement of claim, showing entitled to relief.
3. Demand of relief sought (e.g. damages, injunction, declaratory judgment).

Note: P need not allege grounds of PJ or venue.

Split between traditional notice pleading and plausible claim pleading.

Matters that must be pleaded with even more detail, with particularity/specificity:

1. Fraud
2. Mistake
3. Special damages

Question 60

What are the traditional/modern views of what info needs to be included in a complaint?

Answer 60

Notice pleading (traditional) - only needed enough detail to put other side on notice.

New standard: Must plead facts supporting a plausible claim. To determine plausibility, judge uses own experience and common sense.

Question 61

What is required of a defendant’s response to plaintiff’s complaint?

Answer 61

Rule 12 requires D to respond in one of two ways:

1. By motion, or
2. By answer.

Must do so within 21 days. If waived service, have 60 days from when P mailed waiver form

Motions are not pleadings; they are requests for a court order.

Question 62

What are options for Rule 12 defenses?

Answer 62

12(b) defenses:

1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Improper process
5. Improper service of process
6. Failure to state a claim upon which relief can be granted
7. Failure to join an indispensable party

Note: can be put either in motion to dismiss or in the answer itself.

Waivable defenses: PJ, venue, process, service. If they are NOT put in the first Rule 12 response (motion or answer), they are waived. All others can be raised at any time.
Cf. even if a defense is waived, court has discretion to grant.

Note: nonwaivable defenses (SMJ, 12b6, joinder) are available at any time, even after trial!

Question 63

What are the elements of a defendant’s answer to a complaint?

Answer 63

It’s a pleading in which D

1. Responds to allegations of complaint (admit, deny, state that lacks sufficient info to admit or deny).
2. Raises affirmative defenses (SOL, SOF, res judicata, self-defense). Must plead affirmatively or risks waiver.

Note: in response, can’t state that you lack sufficient info if the answer is within your control; duty to investigate. If you fail to deny it, you are deemed to admit it (exception: never deemed to admit damages).

Question 64

What is a counterclaim?

Answer 64

A claim against the opposing party. Once somebody asserts a claim against you, you are the OP. Your claim back is a counterclaim.

A third party defendant may assert a claim against the plaintiff if the claim arises out of the same transaction/occurrence.

After D serves counterclaim, P must respond within 21 days.

Question 65

What are the two types of counterclaims?

Answer 65

Compulsory and permissive.

Question 66

What is a compulsory counterclaim?

Answer 66

Arises from the same transaction/occurrence as P’s claim. Unless already filed in another case, must file in pending case or the claim is waived.

Ex. L and M each injured. L sues M. M answers and defends. M files case against L later, based on same accident. Case dismissed, b/c it was a compulsory counterclaim.
Does not apply if when L sued M, M successfully dismissed the case.

Question 67

What is a permissive counterclaim?

Answer 67

Does not arise from the same transaction/occurrence as P’s claim. Not required to file in this case, may sue in separate case.

Analysis: SMJ (diversity, FQ), if not supplemental.

Question 68

What is a crossclaim?

Answer 68

A claim against a CO-PARTY. Must arise from same transaction/occurrence as underlying action. Is not compulsory.

Ex. D1 against D2.

Note: once someone has asserted a claim against you, it is a counterclaim and not a crossclaim (because they are opposing parties).

Question 69

Can you join additional claims to a counterclaim or cross claim?

Answer 69

Yes, even if it has nothing to do with the others. Must invoke federal SMJ (diversity or FQ, if not that then supplemental)

Question 70

When do the parties have a right to amend pleadings?

Answer 70

P has a right to amend once within 21 days after D serves first Rule 12 response.

D has a right to amend once within 21 days of serving his answer.

Question 71

What can a party do if there is no right to amend, but they want to amend a pleading?

Answer 71

Seek leave of court. Will be granted if “justice so requires.” Factors include:

1. Delay
2. Prejudice
3. Futility of amendment

Question 72

What is a variance?

Answer 72

Evidence at trial does not match what was pleaded.

After trial, P can move to amend a complaint to conform to the evidence that came out at trial. If D objects while this new evidence is coming out, the grounds would be that it is “at variance with the pleading.”

Question 73

How can one make an amendment to a pleading after the statute of limitations has run?

Answer 73

AKA “relation back” - treat the amended pleading as though it was filed when the original was filed, so as to avoid an SOL problem. Hence, the filing date of the amendment is deemed to be the filing date of the original pleading.

To join a NEW CLAIM
Rule: Amended pleadings relate back if they concern the same conduct, transaction, occurrence as the original pleading, or if a law that provides the statute of limitations applicable to the action permits relation back.

To change a DEFENDANT after the statute has run, relates back only if:

1. Concerns same transaction, conduct, occurrence as original,
2. New party knew about this case within 90 days of its filing AND
3. Also knew that but-for the mistake, would have been named originally

AKA P sued the wrong D first, but the right D knew about it.

Question 74

What are supplemental pleadings?

Answer 74

These set forth things that happen after the pleading is filed (amended pleadings are about things that happened before the pleading was filed, but not asserted until later).

Always discretionary; no right to file.

Question 75

What is the certification in Rule 11?

Answer 75

Applies to all documents except discovery. When lawyer or pro se party signs documents, certifying that to the best of her knowledge and belief, after reasonable inquiry:

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

Also, have a “continuing certification” every time you present a position to the court.

Question 76

When may Rule 11 sanctions be ordered?

Answer 76

May be ordered on attorney, party, firm if there is a violation of the certification. Before imposing sanction, court must give chance to be heard.

Purpose: deter, not to punish (often non-monetary; when monetary, often paid to court not party).

Court can raise Rule 11 sua sponte, issuing an OTSC why sanctions shouldn’t be imposed

Question 77

What is the procedure for bringing a Rule 11 sanction motion?

Answer 77

Can’t make a motion for sanctions immediately.

1. Serve the motion on other parties
2. Parties have safe harbor of 21 days in which to avoid the sanction by fixing problem
3. After 21 days, motion can be filed.

Question 78

What are the initial required discovery disclosures? (Rule 26)

Answer 78

Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference, each party must make reasonable inquiry into the facts and disclose:

1. Identities of persons who have discoverable info that the disclosing party may use to SUPPORT claims or defenses
   - names, phone numbers, subjects (but need not provide a summary)
   - if fail to ID, can’t use witness unless the failure was substantially justified or harmless
2. Documents and things that you may use to support claims or defenses
   - Never need to disclose things that harm case
   - Includes photos, videos, recordings, electronically stored info, papers, tangible items
   - If fails to disclose, can’t use unless failure was substantially justified or harmless
   - Don’t have to disclose things you know about that are not in your custody/control
3. Computation of monetary relief and documents/ESI supporting it
4. Insurance coverage
   - Any insurance that might cover all or part of judgment in the case (even though this isn’t admissible)

Question 79

What are the required discovery disclosures re: expert witnesses?

Answer 79

Later in the case, at a time directed by the court, each party must identify expert witnesses who MAY be used at trial. An expert witness is someone who, because of special skill or training, may give opinion testimony, and is hired to render an opinion on this case. If fail to disclose, can’t call unless failure harmless or substantially justified.

Must include:

1. Identity
2. Written report (opinions, bases, facts used to form opinions, qualifications, how much paid)

Note: early drafts of report are work product, so are communications b/w lawyer and EW.

Thereafter, can take a depo of the EW (party pays reasonable fee per hour, set by court)

Excludes consulting experts. Facts and opinions held by consulting experts generally not discoverable, unless exceptional circumstances.

Excludes treating physician who formed opinions for purposes other than iltigation.

Question 80

What are the pretrial required disclosures?

Answer 80

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

Question 81

What are the tools of discovery

Answer 81

1. Depositions
2. Interrogatories
3. Requests to produce
4. Medical exam (physical/mental)
5. Requests for admission

Only test: relevance. Doesn’t need to be admissible.

Question 82

What are the federal rules governing depositions

Answer 82

1. Deponent not required to review all relevant files/notes, testifies from present recollection.
2. Notice a party (notice of depo) or non-party, but subpoena the non-party to compel attendance.
3. Subpoena duces tecum requires the deponent to bring requested materials
4. Unless nonparty agrees, farthest can be required to travel is 100 miles from where resides or is employed
5. Can’t take more than 10 depositions, or depose the same person twice, without court approval
6. Depositions can’t exceed one day of 7 hours unless court orders or parties stipulate.

Question 83

How may depositions be used at trial?

Answer 83

1. Impeach deponent
2. Any purpose if deponent is adverse party
3. Any purpose if deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the parties seeking to introduce the evidence

Question 84

What are interrogatories, and the rules governing them?

Answer 84

1. Written questions, to be answered in writing under oath
2. Sent to parties only
3. Response within 30 days of service (3 days for mail)
4. Duty to investigate; answer from info reasonably available
5. Max number to send to one party is 25, including subparts (unless court order or stip for more)
6. If answers can be found in business records and burden of finding them would be equally burdensome, can allow requesting party access to records.

At trial, can’t use your own answers to interrogatories. Others are OK per rules of evidence.

Question 85

What are requests to produce, and how are they used?

Answer 85

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. The person must respond in writing with 30 days of service, stating that the material will be produced or asserting objections.

You can make these requests of just parties, not nonparties. However, you can get the same info from non-parties through a subpoena. A party may serve on a nonparty a subpoena that compels the nonparty to produce physical material, including documents and electronically stored information, relevant to the pending action.

ESI must be produced in the form specified by the requesting party, and the other party can object to that form (ex. Hard documents versus e-documents)

Question 86

When can medical exam be used as part of discovery? (Rule 35)

Answer 86

Unique about this: need a court order

1. To get court order, you must show that a person’s health is in actual controversy and “good cause”
2. A person or someone in the party’s custody/legal control can be ordered to undergo a medical exam (parent in control of child – very narrow)
3. The party seeking the order chooses the licensed person to perform the exam (note: if witness requests and obtains the report, waives privilege! then would need to produce reports of his own doctors re medical condition)

Question 87

What is a request for admission?

Answer 87

1. Written request that someone admit things
2. Parties only
3. Ex. Request for “admit or deny X conduct,” and if D fails to deny specifically (or object to the request) in writing within 30 days, they are deemed to admit it.
4. Responding party can say she doesn’t know the answer only if she states that she made reasonable inquiry and cannot find enough to admit or deny
5. Often used to authenticate documents – “admit that this is the contract”

Question 88

What is the certification signed in discovery, and duty to supplement?

Answer 88

Parties sign substantive answers to discovery under oath. Rule 11 does not apply to discovery documents. By another Rule, every discovery request and response is signed by counsel certifying

(1) it is warranted,
(2) it is not interposed for improper purposes, and
(3) it is not unduly burdensome.

Duty to supplement: If circumstances change after response for discovery, must supplement your response to a required disclosure, interrogatory, RFPD, etc.

Question 89

What is the standard for the appropriate scope of discovery?

Answer 89

Anything relevant to a claim or defense AND proportional to the needs of the case.

Relevant = broader than admissible; “reasonably calculated to lead to admissible evidence”

Question 90

What is work product?

Answer 90

Trial prep materials - material prepared in anticipation of litigation. Doesn’t have to be generated by a lawyer, can be by party or rep of the party (hired PI, e.g.).

Generally protected from discovery.

NOT work product:

• Identity of people (with info relevant to case)
• Party has right to request her own statement, even if P made statement to D

Question 91

What is qualified work product?

Answer 91

Qualified immunity from discovery. Can overcome work product privilege if you show:

1. Substantial need, and
2. Not otherwise available.

Can be used to get around work product doctrine.

Question 92

What is absolute work product?

Answer 92

Cannot be discovered. “Opinion work product”

Mental impressions, opinions, conclusions, legal theories.

Question 93

How does one assert privilege or work product?

Answer 93

Privilege log.

If you withhold disco or seek protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail. You do this in a document that lists date, author, recipient, privilege claimed
- Must be in enough detail to determine whether the material is protected

Question 94

What if you inadvertently send work product?

Answer 94

If you inadvertently produce privileged or protected material, you should notify the other party promptly. Other party must then return, sequester, or destroy it pending decision.

Question 95

What are the three ways in which a court may get involved in a discovery dispute?

Answer 95

1. Protective order
2. Partial responses (if one party objects, requesting party makes Motion to Compel, court will decide whether legitimate)
3. No response (failed to attend)

Can seek sanctions.

Question 96

What is a protective order?

Answer 96

If party thinks that discovery request subjects it to annoyance, embarrassment, undue burden, or expense (e.g. deleted files or request is cumulative and not proportional)

Must certify that she tried in good faith to get the info without court involvement, that she asked other side to “meet and confer.”

If court agrees, it can (1) deny discovery, (2) limit it, or (3) permit it on certain terms.

Question 97

When are sanctions against a party for discovery violations appropriate?

Answer 97

Party seeking sanctions must certify that she tried in good faith to get the info without court involvement

If partial response:
Move for court order compelling discovery, plus costs including atty fees.
- If party violates the order compelling him to answer, “merits” sanctions plus costs (and attorney’s fees re the motions) and could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam)

If no response:
Merits sanctions plus costs (and atty fees for motion). No need to get order compelling answers, go directly to merits sanctions.

Question 98

What are merits sanctions?

Answer 98

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

Question 99

What if a party fails to produce ESI b/c lost in good faith?

Answer 99

If party failed to take reasonable steps to preserve ESI, the court can make orders curing the harm to the other party

Question 100

What is the basic requirement for multiparty litigation?

Answer 100

1. Claims must arise from same transaction/occurrence AND

2. Raise at least one common question.

Question 101

Who are necessary parties?

Answer 101

1. Without A (absentee), court cannot accord complete relief among existing parties (worried about multiple suits); OR
2. A’s interest may be harmed if he is not joined (practical harm); OR
3. A claims an interest that subjects a party (usually D) to a risk of multiple obligations

Note: joint tortfeasors are never needed.

Question 102

How are necessary parties joined?

Answer 102

If absentee is deemed necessary, question is whether joinder is feasible. It is feasible if:

1. There is PJ over absentee AND
2. Joining will not destroy diversity jdn (the court determines whether would come in as P or D)

If joinder is feasible, the court orders that the party join the case. That is NOT discretionary!

Question 103

What if a necessary party cannot feasibly be joined?

Answer 103

If A cannot be joined, the court must do one of two things:

1. Proceed without absentee OR
2. Dismiss the entire case

To decide between these, it looks at these factors:

1. Is there an alternative forum available? Maybe some state court;
2. What is the actual likelihood of harm to you?
3. Can the court shape relief to avoid that harm to you?

If the court decides to dismiss rather than proceed, we call the absentee indispensable.

Question 104

What is impleader?

Answer 104

Here, a defending party (usually D) is bringing in someone new. The new party is the third-party defendant (TPD)

If you have impleader claim, you need not assert in this case. It is never compulsory. The compulsory counter-claim is the only compulsory one.

D cannot assert a 3d party claim unless another party unless they are seeking to obtain recovery, which is usually for indemnity.

An impleader claim is usually for indemnity (TPD covers full claim) or contribution (TPD must cover pro-rata portion of claim). You CAN’T use it in order to say “it wasn’t me, it was this other person altogether.”

Question 105

What are the steps for impleading a third party defendant?

Answer 105

1. File third-party complaint naming TPD
2. Serve process on TPD (need PJ over TPD).

Right to implead within 14 days of serving answer. After that, need court permission.

After TPD is joined, P may assert claim against TPD if it arises from the same transaction/occurrence as underlying case (and vice versa).

Remember to assess each claim separately for SMJ (diversity, FQ, or supplemental)
Ex. if you implead someone for contribution of $50k and it’s diversity, would need to get in under supplemental.

Question 106

What is intervention?

Answer 106

Nonparty brings herself in the case. She chooses to come in either as P (to assert a claim) or as D (to defend a claim). The court may realign her if it thinks she came in on the “wrong” side. Application to intervene must be “timely”

Each claim subject to SMJ

Question 107

What is intervention of right?

Answer 107

A’s interest may be harmed if she is not joined and is not adequately represented now.

Question 108

What is permissive intervention?

Answer 108

A’s claim or defense and pending case have at least one common question. Discretionary with court. Usually OK unless intervention will cause delay or prejudice to someone.

Question 109

What are the four requirements for a class, in creating a class action? (Rule 23)

Answer 109

1. Numerosity – too many class members for practicable joinder. No magic joinder.
2. Commonality – there is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke
3. Typicality – rep’s claims are typical of those for the class,
4. Representative adequate – class rep will fairly and adequately rep the class AND
5. The action meets the definition of any of the following three types of class actions found in Rule 23(b):
   i. Separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent members of the class; or ii. A defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or
   iii. There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication

Question 110

What are the three permissive types of cases for a class action?

Answer 110

1. Prejudice (need to treat as class to avoid harm to class members or non-class party)
2. Injunction/declaratory (D created class members alike, ex. employment discrimination - generally can’t seek damages)
3. Damages aka “common question” class action (“common question” and class action method superior)

i. Separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent members of the class; or ii. A defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or
iii. There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication

All members of a class are bound unless they are type 3 who opt out.

Question 111

What are the requirements for a class action fitting into the “prejudice” bucket?

Answer 111

Class treatment necessary to avoid harm (prejudice) either to class member or non-class party.

Ex. Many people claims to a limited fund of money. If they sue individually, the fund will be depleted before all claimants can get to court, leaving later claimants with nothing. To avoid that prejudice, class will allow everyone to recover at least a portion.

Question 112

What are the requirements for a class action fitting into the “damages” bucket?

Answer 112

1. Common questions predominate over individual questions, AND
2. Class action is superior method to handle dispute

Ex. mass tort

In Type 3 class, court must notify class members that they are in a class. Notice must tell them:

1. They can opt out
2. Will be bound if they do not opt out
3. Can enter separate appearance through counsel.

Representative pays for that notice.

Question 113

What are the requirements for certification of a class?

Answer 113

Note: case isn’t a class action unless the court grants a motion to certify the class.

1. When it certifies the class action, the court must “define the class and the class claims, issues, or defenses.”
2. If it certifies the class action, it must also appoint class counsel (judge decides who it will be)
3. Class counsel must fairly and adequately represent the interests of the class

Question 114

What are the requirements for settling or dismissing a certified class action?

Answer 114

Parties can settle or dismiss a certified class action, but only with court approval. And in all three types, the court will give notice to class members to get feedback on whether case should be settled or dismissed. Decision is up to the court.

If it is a Type 3 class, the court might give those members a second chance to opt out.

Question 115

How does one determine subject matter jdn in a class action?

Answer 115

Note: always need SMJ.

• As long as the rep is diverse from all defendants, as long as rep’s claim exceeds 75k, class action will invoke diversity.
• For citizenship, consider only the rep (and ignore other class members’ citizenship), and rep’s claim must exceed 75k.

Question 116

What is the Class Action Fairness Act?

Answer 116

This grants subject matter jdn separate from diversity of citizenship jdn. It lets a fed court hear a class action (of at least 100 members) if any class members (not just the representative) is of diverse citizenship from any defendant if the aggregate claims of the class exceed 5 million. This makes it easier for interstate class to go to fed court.

There are complicated provisions to ensure that local classes (where most class members and primary defendants are citizens of same state) do not stay in fed court; they get dismissed (or if they were removed from state court, are remanded to state court)

Question 117

What is the basic idea behind preliminary injunctive relief?

Answer 117

P is planning to file suit (or has sued). P is worried that before the 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. The court is nervous about doing this b/c merits of underlying dispute have not been decided.

An order that maintains the status quo until trial is a preliminary injunction.

Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek a Temporary Restraining Order

Question 118

What are the requirements for requesting an ex parte temporary restraining order?

Answer 118

Ex parte TRO is proper only if:

1. 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
2. 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)

If the court issues the TRO, applicant must post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful. Court determines that cost.
Exception: The United States, its officers, and its agencies are not required to give security.

Question 119

What are the requirements for issuing an ex parte temporary restraining order?

Answer 119

The TRO must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued, and why the threatened injury to P was irreparable.

• If the court issues the TRO must be served on D as soon as possible
• If the court issues the TRO, the D can move to dissolve or modify the TRO.
• TRO is effective for no more than 14 days (or lesser if stated by court). If applicant shows good cause before expiration, it can be extended up to another 14 days. But a TRO cannot ever extend beyond 28 days.

Question 120

What are the requirements for a preliminary injunction?

Answer 120

Maintains status quo until the court can adjudicate the underlying claim on the merits.

• Can never be granted ex parte
• Discretionary

Burden is on applicant to show:

1. He is likely to suffer irreparable harm if injunction is not issued,
2. Is likely to win on the underlying merits of case
3. Balance of hardship favors him (threatened harm to applicant outweighs the harm to other party if injunction is used), AND
4. Injunction is in the public interest

If court grants PI, applicant must post a bond.

Court requirements:

• Court may consolidate the hearing on the motion for PI with trial on underlying case. It may advance trial on calendar to do so.
• The PI must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued.
• In granting or denying the PI, court must make specific findings of fact and separate conclusions of law.
• An order granting or denying a PI is immediately appealable.

Question 121

What is a voluntary dismissal?

Answer 121

P wants to withdraw the case. P can make motion for voluntary dismissal anytime, which court has discretion to grant.

P has a right to take a voluntary dismissal by filing a “notice of dismissal,” but must do so before D serves answer or Motion for Summary Judgment.

If P files a timely notice of dismissal, the case is dismissed without prejudice, which means that P can refile the case.

You can only do it without prejudice once; if P files notice of dismissal in the second case, that dismissal is with prejudice.

Question 122

When will a default kick into gear, and what is it?

Answer 122

If D does not respond to complaint in time (21 days after being served with process; 60 days from mailing waiver if waived service)

Default:

1. Notation by court clerk on docket sheet on case.
2. The court does not enter default automatically on 22nd day after service of process on D; the P must move for it. It’s easy to get – P must demonstrate that D failed to respond in time. Until default is entered, D can respond by motion or answer, even beyond the 21 days.
3. The effect of entry of default: cuts off the D’s right to respond.
4. Entry of default does not entitle P to recover. Before recovering, P needs a default judgment.

Question 123

What is a default judgment? D

Answer 123

Clerk of court can enter judgment if:

• D made no response at all;
• Claim itself is for a sum certain in money;
• Claimant gives an affidavit of sum owed; AND
• D is not minor/incompetent

If any of those is not true, P must go to the judge for the default judgment (apply to the court itself). The judge will hold a hearing and has discretion to enter judgment. D gets notice of this hearing.

If default, D loses the ability to contest liability unless the default is set aside. However, damages still must be determined (D is entitled to have notice, appear in court).

Question 124

What is a motion to set aside?

Answer 124

Motion to set aside default – must show good cause and a viable defense. D may move to have court set aside default/default judgment.

Ex. improper service (‘collateral attack” - the defendant never appeared in the action at all). Default judgments that are procedurally deficient need not be enforced by FFC.

Question 125

What is a 12(b)(6) motion?

Answer 125

This is about whether the case belongs in the litigation stream at all. If P’s complaint fails to state a claim, the case can be dismissed (this used pre-D answer)

• In ruling on this motion, court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks: if these facts were true, would the P win a judgment?
• If there is no, there is no sense letting the case proceed, because the law does not recognize a claim on these facts. Court will let P amend to try to state a claim (usually).
• In ruling on this motion, court does not look at evidence, only at the face of complaint.
• Remember, the facts alleged must now support a “plausible” claim. The judge uses experience and common sense to see if they do.

If this is made after D has filed an answer, it’s called a Motion for Judgment on the Pleadings

Question 126

What is a Motion for Summary Judgment?

Answer 126

Under FRCP 56. Always discretionary.

Party moving for SJ must show:

1. No genuine dispute of a material fact, AND
2. P is entitled to judgment as a matter of law

Timing: Any party can move for this no later than 30 days after close of discovery.

Motion for partial judgment is allowed (one of several claims).

Question 127

What evidence may a court consider in considering a summary judgment?

Answer 127

Here, court can look at the evidence. They view evidence in light post favorable to nonmoving party. Parties proffer evidence like affidavits, desclarations, depo testimony, interrog answers.

Note that if plaintiff comes forward with affidavits detailing why entitled to SJ, D may not simply rest on a denial or pleading contents.

NOTE: pleadings are NOT evidence, so if the issues of material fact are not raised in pleading, D entitled to SJ.

• Usually, pleadings are not under oath and so are not considered evidence. It will be treated as evidence only if it is verified (under oath) – extremely rare in fed court.
• But pleadings might be relevant for SJ in this way: if D failed to deny an allegation by P, it can be treated as a fact on summary judgment.

Question 128

What is a Rule 26(f) conference?

Answer 128

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.

They must come to the court and produce a detailed discovery plan, including views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (e.g. deleted files) etc.

Question 129

What is a scheduling order?

Answer 129

Unless local rule or court says otherwise, court enter order scheduling cut-offs for joinder, amendments, motions, completion of discovery, etc. This is roadmap for how litigation proceeds up to trial.

Question 130

What is a pretrial conference?

Answer 130

court may hold pretrial conferences to process the case and foster settlement. Modifiable only to “prevent manifest injustice”

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 the pleadings. The order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. So there are no surprises at trial.

The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement. Moreover, this conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties.

A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys’ fees) by other parties unless the court finds that circumstances make such an award unjust

Question 131

What is the right to jury in federal court?

Answer 131

7th Amdt preserves the right to jury in “civil actions at law,” when the amount in controversy is over $20, but not in suits at EQUITY (injunction). If a case involves both law and equity (claims for both legal relief through damages and an injunction), the jury decides the facts underlying the damages claim and NOT the equity claim

• Trial usually proceeds by trying the jury issues FIRST.
• 7th Amdt does not apply to state court
• 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 132

What are the two kinds of challenges to jurors?

Answer 132

1. For cause – e.g. impartiality. No limit on how many they can make.
2. Peremptory – historically one did not need to state a reason. Limit: 3 strikes per side. Peremptory strikes may only be used and a race and gender-neutral manner, b/c jury selection is state action

Question 133

What are the number requirements for a jury in federal court?

Answer 133

Jurors on a civil jury in a federal court – minimum 6, maximum 12

• Generally, all jurors participate in in the verdict unless excused for good cause.
• Unless parties agree otherwise, unanimous jury vote required for verdict

Question 134

What are the procedures governing jury instructions?

Answer 134

Jury decides facts, but instructed on the law by the judge

• Parties submit proposed jury instructions to the judge, at the close of all evidence (or earlier if the court says)
• Before final argument and instruction, the court informs the parties of what instructions it will give and of its rejection of any proposed jury instructions
• The parties must be allowed to make specific objections to the instructions and to the rejection of proposed instructions, must be before final argument and instruction.
• If objections are not made before jury is “charged” (given instuctions), party cannot raise a problem with the jury instructions on appeal.
• Exception: if party did not object timely, court can consider jury instruction if it contained plain error that affects substantial rights

Question 135

What are the three types of verdicts?

Answer 135

Judge determines which type the jury will use:

1. General (clerk enters) - the jury finds for the plaintiff or defendant and determines damages or relief
2. Special verdict - jury receives a series of questions regarding each ultimate fact, then the court makes legal conclusions based on those facts
3. General verdict with special interrogatories - jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact (to ensure they considered the right issues)

Question 136

What are the different ways in which judgment may be entered?

Answer 136

• If jury returns general verdict, the clerk enters the judgment (don’t even need judge)
• If special or general with special interrogs, and assuming answers are consistent with each other and verdict, judge approves the judgment and the clerk enters it.
• If the verdict shows that the jury did not follow instructions or it is internally inconsistent (e.g. answers to questions are inconsistent with result), then no judgment can be entered.
• The judge then can instruct jury to reconsider answers, or if reconsideration won’t fix problem, can order new trial.

Question 137

When may eh court set aside the verdict and order a new trial based on juror misconduct?

Answer 137

Verdict may be “impeached” based on “external” matters. So if jurors were bribed, or based the verdict on their investigation of matters outside the court instead of evidence at trial, new trial can be ordered. Non-jurors may give first-hand evidence of such things.

But aside from outside influence, juror can’t testify about things that happened during deliberation (e.g. drug use).

Verdict won’t be set aside if misconduct was harmless.

Question 138

What are the requirements for judgment entry at bench trial?

Answer 138

When no jury (either 7th Amdt didn’t apply or parties waived), the judge determines facts at trial.

The judge must record:

1. Her findings of fact, and must state them either on the record or in writing, AND
2. The judge must also record her conclusions of law, AND
3. Must enter a judgment (who wins, and if P won) the relief)

Question 139

What is a Motion for a Judgment as a Matter of Law, and what are its requirements?

Answer 139

AKA directed verdict. If judge grants, the case will not go to the jury, and the judge simply rules for a side.

Test: court must find that a reasonable jury would not have a legally sufficient basis to find for the party on the issue (View in light most favorable to claim and do not assess witness credibility)

When: after other side has presented her claim.

Question 140

What is a Renewed Motion for JMOL?

Answer 140

Arises when a party against whom judgment was entered claims that judgment was based upon a verdict that reasonable party could not have reached, and pled for JMOL.

MUST have asked for JMOL ON THE SAME GROUNDS as your RJMOL, otherwise it is procedurally improper!

Same as JMOL but after trial. Must have moved for JMOL at proper trial, and bring RJMOL within 28 days after entry of judgment.

If RJMOL is granted, the court enters judgment for the party that lost the jury verdict! As with JMOL, court views this evidence in the light most favorable to P.

Note: if party meets RJMOL standard but failed to bring JMOL at trial, can bring motion for new trial.

Question 141

What is a motion for new trial?

Answer 141

Judgment is entered, but some error at trial requires that we should start over and have a new trial. Could be based on any (non-harmless) error that makes the judge think we should have a do-over. Party moves for this within 28 days after judgment.

A new trial may be granted when the verdict is:

1. Excessive
2. Inadequate
3. Against the weight of the evidence
4. Error during trial
5. Juror misconduct

Ex. Judge gave erroneous jury instruction
Ex. New evidence that could not have gotten before with due diligence
Ex. Misconduct by juror, party, lawyer, etc.
Ex. Judgment is against the weight of the evidence (serious error of judgment)
Ex. Inadequate or excessive damages

Question 142

What is remittitur?

Answer 142

If ground for new trial is met that jury’s compensatory damage figure is excessive/inadequate - shocks the conscience. Judge may either order new trial or offer remittitur.

Playing hardball with P, who got tons of damages. Can order new trial or suggest remittitur, which gives P choice: (1) take lesser amount, or (2) new trial.

• Court cannot simply lower the figure, must give P the choice
• OK in both state and fed courts

Question 143

What is additur?

Answer 143

Playing hardball with the D, who got low damages that “shock the conscience” such that new trial may be ordered.

Choice: pay greater amount or go through new trial.

Unconstitutional in federal court - violates 7th Amdt. States are free to recognize.

Question 144

What is an offer of judgment?

Answer 144

At least 14 days before trial, say D offers to pay 50k to settle P’s claim. P can accept and judgment will be entered for that amount. Suppose P rejects it and goes to trial, wins after judgment that is not more favorable than offer, P is liable to D for D’s costs incurred after offer was made

Question 145

What is a Motion for Relief from Order or Judgment? (Rule 60)

Answer 145

Here, ask district court to set aside an order or judgment it entered.

NO MAXIMUM:

(i) Judgment is void (e.g. no SMJ) - A motion for relief from judgment because the judgment is void must be brought within a reasonable time, but there is no outermost deadline.
(ii) Clerical error

ONE YEAR:
When relief is based on
(i) mistake, inadvertence, surprise, or excusable neglect;
(ii) newly discovered evidence that, by due diligence, could not have been discovered in time to move for a new trial; or
(iii) fraud, misrepresentation, or other misconduct of an adverse party, the motion must be brought within a reasonable time not to exceed one year.

Question 146

What is the final judgment rule, for purposes of appeal?

Answer 146

Starting point: can appeal only from final judgments. This means an ultimate decision by the trial court on the merits of the entire case. File notice of appeal in district court within 30 days after entry of final judgment.

To determine if ruling is a final judgment, ask one question: after making this ruling, does the trial court have anything left to do on the merits of the case?

NOT final judgment:

• denial of motion of SJ
• Grant of motion for new trial
• grant of motion to transfer case
• grant of motion to remand to state court

YES final judgment:
- denial of motion for new trial

Note: When more than one claim is presented in a case, or when there are multiple parties, the district court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay.

Question 147

What interlocutory orders are reviewable as of right?

Answer 147

Orders granting, modifying, refusing preliminary or permanent injunctions

Question 148

What is the Interlocutory Appeals Act?

Answer 148

Allows appeal of nonfinal 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
(c) the court of appeal agrees to hear it.

Question 149

What is the collateral order exception?

Answer 149

Appellate court has discretion to hear ruling on an issue if it

1. Is distinct from the merits of the case,
2. Involves an important legal question, and
3. Is essentially unreviewable if parties must await a final judgment

Question 150

Can a court review an order granting or denying certification of a class action?

Answer 150

Yes, must seek review of court of appeals within 14 days of order (under FRCP 23(f)). Appeal here doesn’t stay the proceedings at a district court unless the court of appeals or district court says so.

Question 151

What is an extraordinary writ?

Answer 151

original proceeding in the court in the court of appeals to compel the trial judge to make or vacate a particular order. Not a substitute or appeal; available only if the district court is violating a clear legal duty.

Question 152

What is the standard of review by appellate courts when a district judge decides a question of law?

Answer 152

DE NOVO.

1. No deference given to the district judge

Ex. District judge gave jury instruction that put burden of proof at trial on the wrong side. The court appeals reviews that de novo b/c content of jury question always question of law.

Question 153

What is the standard of review for appellate courts when at a bench trial, district judge determines questions of fact?

Answer 153

Ct App will appeal unless findings are CLEAR ERROR

Note: no reversal required if harmless error

Question 154

What is the standard of review for ct app in reviewing jury trial decisions of fact?

Answer 154

Affirm unless reasonable people could not have made that finding

Question 155

What is the standard of review for district court discretionary matters?

Answer 155

Affirm unless court abused discretion

Question 156

What is the basic idea of preclusion?

Answer 156

Whenever there has been an earlier case, watch for these issues, which concern the preclusive effect of a prior judgment on the merits. The question is whether a judgment already entered (case 1) precludes litigation of any matters in another case (case 2)

f case 1 and case 2 are in different judicial systems (e.g. state and federal), the court in case 2 applies the preclusion law of the judicial system that decided case 1.

Question 157

What is claim preclusion (res judicata), and what are the three steps for a successful claim?

Answer 157

You only get to sue on a claim once. You only get one case in which to vindicate all rights to relief for that claim. Requirements to assert res judicata:

1. Case 1 and Case 2 were brought by the same claimant against the same defendant
   (Ex. If A sues B, but then B later sues A – claim preclusion doesn’t apply because the cases are not brought by same claimant against same defendant.)
2. Case 1 ended in a valid final judgment on the merits.
   General rule: unless the court said otherwise when it entered the judgment, any judgment is “on the merits” UNLESS it was based on jurisdiction (SMJ, PJ), venue, or indispensable parties.
   Note: Default judgment is on the merits, even if nothing was adjudicated.
3. Case 1 and Case 2 asserted the same “claim”
   - Majority view (including federal law): a claim is any right to relief arising from a transaction or occurrence (T/O).
   - Minority view: there are separate claims for property damage and for personal injuries because those are different “primary rights.” Note: doesn’t look at claims, looks at harm.

Question 158

What is issue preclusion (collateral estoppel)?

Answer 158

Narrower than claim preclusion - issue litigated in case 1 that comes up in case 2, if issue preclusion applies it can’t be relitigated and will deem it established in case 2. Issue preclusion arises when you have previous judgment; any judgment binds them in subsequent actions on different causes of actions as to issues that were actually litigated and essential to the judgment of the first action

Requirements:

1. Case 1 ended in valid final judgment on the merits
2. Same issue was actually litigated and determined in Case 1
3. That issue was essential to the judgment in Case 1 (basis for the judgment)

Note: default judgment is not on the merits. The issue on which issue preclusion applies must actually have been litigated and determined in the previous case. If a default judgment was entered in the previous case, issue preclusion does not apply to the issues that would have been tried had the case gone forward.

Question 159

Against whom can issue preclusion be asserted?

Answer 159

It can only be used against somebody who was a party to Case 1 or in “privity” with a party.

“Privity” means that a party to Case 1 represented someone who was not a party to Case 1. 
Example: class action, where Rep represents members, who are bound even though they were not parties. This is a due process requirement.

Question 160

By whom can issue preclusion be asserted?

Answer 160

Every court agrees that issue preclusion can be used by someone who was party to Case 1 (or represented by a party). The big question is whether it can be used by someone who was not a party to Case 1 (or represented by a party). When someone who was not a party to Case 1 tries to use issue preclusion in Case 2, it is called “nonmutual” issue preclusion. It comes up in two ways:

1. Nonmutual defensive issue preclusion (one using it was not a party to Case 1 and is D in Case 2)
2. Nonmutual offensive issue preclusion (one using it was not a party to Case 1 and is P in Case 2)

Question 161

What is the test for nonmutual defensive issue preclusion? (defendant in case 2)

Answer 161

1. Did Case 1 end in a valid, final judgment on the merits?
2. Was the same issue litigated and determined in Case 1?
3. Was that issue essential to the judgment in Case 1?
4. Is issue preclusion being asserted against one who was party to Case 1?

If yes, federal law and most states say it is OK so long as the party in Case 1 had a full chance to litigate.

Question 162

What is the test for nonmutual offensive issue preclusion? (plaintiff in case 2)

Answer 162

1. Did Case 1 end in a valid and final judgment on the merits?
2. Was the same issue litigated and determined in Case 1?
3. Was that issue essential to the judgment in Case 1?
4. Is issue preclusion being asserted against one who was a party to Case 1?
5. Fifth requirement is tough. Here, the person asserting is a plaintiff. Most states today probably say no. But a clear trend (including federal law) will allow nonmutual offensive if it is not “UNFAIR” – Factors:
   a. Party had a full and fair opportunity to litigate in Case 1
   b. Party had an incentive to litigate strongly in Case 1
   c. You could not have joined easily in Case 1 (if you could have, maybe you should have been bound by this judgment
   d. There are no inconsistent findings on this issue

Question 163

What action is deemed to commence an action in federal question case, for purposes of SOL?

Answer 163

When complaint is filed with the court.

In diversity cases, the state rule applies b/c it is a substantive issue

Question 164

What is the immunity rule?

Answer 164

If a witness travels to another jurisdiction solely to be a witness in a court action, the witness is immune from service of process. Therefore, the witness may not be served with process in person while in the other jurisdiction for court purposes. The immunity rule applies to witnesses, parties, and attorneys alike.

Question 165

Under Rule 41, when may a court order an involuntary dismissal against a plaintiff?

Answer 165

A court may, under Federal Rule 41(b), order an involuntary dismissal against a plaintiff on the defendant’s motion or on its own motion for the failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order. An involuntary dismissal is with prejudice, meaning that it operates as adjudication on the merits, unless the court orders otherwise.

Question 166

When does SCOTUS have discretion to hear a case?

Answer 166

The Supreme Court has discretion to hear some appeals from state courts and some appeals directly from federal district courts in certain cases.

The Supreme Court may hear on direct appeal any order granting or denying an injunction in any proceeding required to be heard by a three-judge district court panels.

It also may hear by discretionary writ of certiorari final judgments of the highest court of a state if:

(i) the validity of a treaty or federal statute is drawn into question;
(ii) the validity of a state statute is drawn into question on the ground that it is repugnant to the federal Constitution or to a treaty or federal statute; or
(iii) any title, right, privilege, or immunity is claimed under the federal Constitution or treaty or federal statute.

Question 167

What courts must recognize state court judgments?

Answer 167

Under the Full Faith and Credit Clause of the Constitution and federal statutes, a state court generally must recognize the judgments of a sister state and federal courts generally must recognize judgments of state courts. Recognition of judgments is required between state courts, between state and federal courts, and between federal courts.

Question 168

When would otherwise discoverable ESI not need to be produced?

Answer 168

During discovery, electronically stored information need not be produced if the responding party identifies it as from a source that is not reasonably accessible because of undue burden or cost.

Question 169

What costs may be awarded to a party who wins on a discovery motion that is brought into court?

Answer 169

If the passenger’s attorney has attempted in good faith to resolve the dispute, the court must order the losing party to produce the discovery and to pay the other party’s reasonable costs in making the motion, including attorney’s fees.

However, costs may not be awarded if:

(i) the movant filed the motion before attempting in good faith to obtain disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances exist that make an award of expenses unjustified.

Question 170

What are the rules governing application of federal procedural laws, when there is a rule on point? (under Erie)?

Answer 170

Under the Rules Enabling Act, a Federal Rule is valid if it deals with “practice or procedure” and does not “abridge, enlarge, or modify” a substantive right.

Ex. federal rule re: jury instruction requiring unanimity is procedural

Question 171

When does a bar on a subsequent claim occur?

Answer 171

When a plaintiff loses. The adverse judgment bars the plaintiff from relitigating the case.

Compare: merger. When a plaintiff WINS, her claims are said to merge, and she cannot relitigate the issue.

This is all about issue preclusion.

Question 172

What is an interpleader action?

Answer 172

Permits a person in the position of a stakeholder to require two or more claimants to litigate among themselves to determine who has the right to property. Where the plaintiff is in possession of property claimed by two or more parties

FRCP Rule 22: relies on normal rules of federal SMJ (diversity or federal question)

Statutory interpleader provisions (28 USC 1335): Arises when the amount in controversy is $500 or more and when there is diversity between any two contending claims. (Diversity jdn only, NO federal question jdn)

Question 173

Is service procedural or substantive?

Answer 173

It is procedural issue, and we follow federal rules (not state laws)

FRCP 4 allows for service of process to be completed as provided in (1) state in which federal court sits, OR (2) rules of state in which service was effected.

Question 174

In federal court, when can you withdraw a jury demand?

Answer 174

Can’t unless both parties consent to the withdrawal.