Civil Procedure Flashcards
To learn civ pro
1
Q
General two-step analysis for PJ over defendant
A
PJ requires satisfying (1) a state statute and (2) constitutional due process
2
Q
Big analysis for constitutional due process re: PJ
A
General requirement: Does D have minimum contacts with forum so jurisdiction does not offend traditional notions of fair play and substantial justice?
To assess, look for: Contact, Relatedness, Fairness
Contact: Purposeful availment + foreseeability. D must reach out to the forum and it must be foreseeable that D could get sued in the forum.
Relatedness: Does P’s claim arise from D’s contact with the forum? If yes, called “specific personal jurisdiction.” If no, called “general personal jurisdiction.” General PJ requires D “at home” in the forum. Humans are “at home” where domiciled. Corporations are at home where continuous and systematic activity, which means (1) where incorporated and (2) where principal place of business.
Fairness: Only applies to specific personal jurisdiction cases Weigh/assess (1) burden on D and witnesses [burden must put D at a severe disadvantage in the litigation], (2) state’s interest [satisfied if P is a citizen of the state], (3) plaintiff’s interest.
3
Q
Notice consists of
A
Summons and copy of complaint
4
Q
“Process” means
A
Summons and copy of complaint
5
Q
Who can serve process?
A
Any NON-PARTY at least 18 years old
6
Q
Time limit for serving process after complaint is filed
A
90 days
7
Q
Ways to serve process on an individual
A
Four ways:
(1) personal service: can happen anywhere
(2) substituted service: Must be (a) at D’s “usual abode” which means where living now, and (b) serve someone of suitable age and discretion and who RESIDES there.
(3) service on D’s agent, if the agent is able to receive process
(4) by whatever state law method service is allowed, can look at (1) state law of where the federal court sits or (2) state law of where process is made.
8
Q
Method of substituted service on individual
A
Substituted service: Must be (a) at D’s “usual abode” which means where living now, and (b) serve someone of suitable age and discretion and who RESIDES there.
9
Q
Ways to serve a business in the United States
A
Two ways:
(1) Serve an officer, manager, or general agent
(2) By whatever state law method service is allowed, can look at (1) state law of where the federal court sits or (2) state law of where process is made.
10
Q
Ways to serve a minor or incompetent person in the United States
A
Use any method permitted by state law of where the service is to be made.
11
Q
Ways to serve in a foreign country
A
(1) Method allowed by international agreement
(2) As directed by an American court, reasonably calculated to give notice: (a) method according to the foreign country’s law, (b) as a foreign official directs, (c) personal service (if the foreign country allows), (d) mail sent by CLERK of American court requiring signed receipt (if foreign country allows).
12
Q
How to waive formal service of process
A
Mail to D a (1) notice, (2) request to waive formal service, (3) copy of complaint, (4) two copies of a waiver form, (5) prepaid means of return.
If D executes within 30 days (or 60 days outside US), D waives formal service of process. If D fails to return, then D must pay cost of formal service.
13
Q
How is formal service of process proven
A
Process server files affidavit detailing the service. Failing to do so does not affect validity of the service.
14
Q
Where can process be served?
A
(1) Within the state where the federal court sits, or (2) in another state if that state allows
15
Q
How can someone be immune from service of process?
A
If D is present in State X as a party, witness, or attorney for a different civil case, then D cannot be served.
16
Q
How can other documents (not process) be served?
A
Usually mail, email if party agrees.
17
Q
When is service of discovery requests deemed complete? How long does the party have to respond?
A
When they were put in the mailbox. Discovery requests have 30-day window and mailing gives an extra 3 days.
18
Q
Basic requirements for diversity SMJ
A
(1) the case is between CITIZENS of different states (at the time of filing), and (2) the amount in controversy EXCEEDS $75,000 (must be $75,000.01 or more).
19
Q
Complete diversity rule re: diversity SMJ
A
No P can be a citizen of the same state as any D.
20
Q
For diversity SMJ, how to tell if a human is a citizen of a state?
A
The U.S. state where she is “domiciled,” which is (1) presence and (2) intent to remain for foreseeable future.
Courts look at all relevant factors in this analysis.
21
Q
Definition “domicile” for diversity SMJ
A
(1) presence and (2) intent to remain for foreseeable future.
Courts look at all relevant factors in this analysis.
22
Q
For diversity SMJ, when exactly must the parties be citizens of different states?
A
At the time when the case was filed.
23
Q
For diversity SMJ, where is a corporation a citizen?
A
(1) Every state where incorporated AND (2) the ONE state where it has principal place of business, i.e., “nerve center” = direct, coordinate, control corporate activities.
24
Q
For diversity SMJ, where in an unincorporated association (i.e., LLC, LLP, etc.) a citizen?
A
Of all states where all of its members/partners are citizens.
25
For diversity SMJ, where is the citizenship of decedents, minors, or incompetents?
Must be sued through a representative, but look to the actual defendant's citizenship. The citizenship of the representative is IRRELEVANT.
26
For amount in controversy requirement, how sure must P be about the validity of the amount claimed?
Must be clear to a "legal certainty."
27
Meeting amount in controversy for equitable relief
Two approaches: plaintiff's viewpoint and defendant's viewpoint.
28
Exclusions for diversity cases even requirements (diversity and amount in controversy) are met
(1) divorce, (2) alimony, (3) child custody, (4) probate of estate
29
Well-pleaded complaint rule
P's federal law claim appears on the face of the complaint, i.e., P is enforcing a federal right
30
Time window for D to remove a case
D must remove no later than 30 days from service of the first paper showing the case is removable (typically 30 days from service of process).
31
If multiple Ds, how many must consent to removal
All defendants
32
Can plaintiff ever remove from state to federal court?
NO
33
Cases that can be removed and exceptions
Any case that meets diversity or federal question can be removed.
Two exceptions, only for diversity cases: (1) no removal if any D is a citizen of the forum; or (2) no removal more than one year after the case was filed in state court.
34
When removal happens, what federal court does the case go to?
The federal court in the district that embraces the state court
35
How do Ds alert the court they want to remove?
They file "notice of removal" to the federal court and attaches all documents to it, and then "promptly serves" notice of removal to all adverse parties. Then files copy of notice of removal in state court.
They do not "move" or file a motion. They are not seeking permission.
36
Time window for P to move to remand the case back to state court if P thinks removal was improper
If for any reason other than lack of SMJ (e.g., a procedural reason), P has 30 days after notice of removal was filed in federal court.
If for lack of SMJ, any time.
37
Test for supplemental jurisdiction
The new claim must share a "common nucleus of operative fact" with the claim that invoked federal SMJ.
This test is ALWAYS met by showing the new claim arises out of the same T&O.
Limitation: In a diversity case, claims by P cannot invoke supplemental jurisdiction. Exception: if there are multiple Ps.
38
Must a federal court hear claims that are based on supplemental jurisdiction?
No, there is discretion. Examples: if state law claim is complex, state law issues predominate, or if the federal claims were dismissed early in the case.
39
Process for Erie Doctrine
Step 1: Ask if a federal law (including FRCP, Ev, statutes, Constitution) on point that directly conflicts with state law. If there is, ask if the federal law is "valid." FRCP is presumptively valid, and valid if they are even "arguably" procedural. No FRCP has ever been found invalid.
Step 2: If no federal law directly on point, must apply state substantive law. Five areas are clearly substantive: (1) elements of claim or defense, (2) statute of limitation, (3) tolling of statute of limitations, (4) conflict of law rules, (5) standard for excessive or inadequate jury awards.
Step 3: If there is no federal law on point and the issue is not one of the five issues above, then judge must determine if the law is substantive or procedural. Judge weighs three things: (1) Is the issue outcome determinative? If so, probably substantive. (2) Does the federal or state system have a strong interest? (3) Will ignoring state law invite forum shopping into federal court?
40
Areas of federal common law
international relations, admiralty, disputes between states, Bivens, preclusive effect of federal judgment
41
Where is proper venue
Venue is proper (1) in any district where all Ds "reside," or (2) in any district where a substantial part of the claim arose.
Reside human = district where domiciled
Reside corporation = subject to personal jurisdiction
42
Where does a human or corporation "reside" for venue purposes?
Reside human = district where domiciled
| Reside corporation = subject to personal jurisdiction
43
When venue is proper in original district, how to transfer to transferee district?
Usually defendant seeks transfer. Court looks at (1) convenience of parties and witnesses and (2) "interest of justice," which looks to public factors and private factors.
Public factors: what law applies, community jury pool, super local controversy should be litigated where it happened.
Private factors: where evidence is and where witnesses are. Valid forum selection clause for the new forum will directly establish private factors weigh in favor of transfer.
44
What law (state or federal) governs the enforcement of forum selection clauses re: decision to transfer?
Federal law. A federal court may enforce a FSC where state law would not and vice versa.
45
Re: transfer: when venue was PROPER in F1 and a case is transferred to F2, what law applies?
The law of F1, UNLESS the transfer was to enforce a valid forum selection clause.
46
Re: transfer: when venue was IMPROPER in F1 and a case is transferred to F2, what law applies?
The law of F2.
47
When venue is improper in F1 and a party seeks transfer, what options does the court have?
Can transfer or can dismiss.
48
What results from a successful application of forum non conveniens?
Dismissal or stay of proceedings.
49
How does court weigh an application of forum non conveniens?
Applies Same weigh of public and private factors as for transfer, and assesses whether the foreign court is "adequate." A foreign court is "inadequate" only if P can get NO remedy.
Public factors: what law applies, community jury pool, super local controversy should be litigated where it happened.
Private factors: where evidence is and where witnesses are. Valid forum selection clause for the new forum will directly establish private factors weigh in favor of transfer.
50
Requirements for a normal complaint versus complaints that require "particularity"
(1) grounds for SMJ
(2) short and plain statement of claim with facts showing claim is plausible (Twombly/Iqbal)
(3) what relief sought
If claim is for fraud, mistake, special damages require pleading with "particularity."
51
What two ways D can respond to a complaint and what time window to respond
By motion (e.g., 12(b)(6), etc.) or by answer.
If served with process, within 21 days. If waived service of process, 60 days.
52
12(e) motion for more definite statement
Complaint is so vague that D cannot respond. D must make this motion before answering.
53
12(f) motion to strike
Asks the court to remove redundant or immaterial things form pleadings.
Any party may move for this.
54
List all the 12(b) defenses, and when can they first be raised? Which are waivable? What does it mean to waive? Which must be raised by end of trial? Which has no time limit to raise?
(1) lack of SMJ
(2) lack of PJ
(3) improper venue
(4) improper process (a problem with the papers themselves)
(5) improper service of process
(6) failure to state a claim
(7) failure to join an indispensable party
Can raise in answer or in a motion to dismiss.
Waivable = 2, 3, 4, 5
Waiver means 2, 3, 4, or 5 must be raised in the VERY FIRST Rule 12 response (by either motion or answer) or else they're waived.
55
If D's motion to dismiss is denied, how long to file an answer?
14 days from notice of the denial.
56
What three ways can a D respond to allegations in an answer to a complaint? What else can D do in an answer to a complaint?
Admit, deny, or say you lack sufficient info (which has effect of denial, but D has responsibility to at least try).
Raise affirmative defenses.
57
If D fails to raise an affirmative defense in answer, what might happen?
May be deemed to have waived it.
58
If D raises affirmative defense, does P have to respond?
No. They're automatically deemed denied.
59
Four situations to amend pleadings
(1) Right to amend: P has RIGHT to amend once (i.e., does not need permission from court) no later than 21 days after D's first Rule 12 response. D has RIGHT to amend once no later than 21 days after serving the answer, and can raise waivable defenses here if they were left out of original answer.
(2) If no right to amend: ask for leave of court, court looks at delay, prejudice, futility.
(3) Variance: make sure what happens at trial conforms to pleadings.
(4) Relation back after Statute of Limitations: to join a CLAIM not originally asserted as long as "relates back", which is fine as long as part of same T&O. To join a DEFENDANT not originally asserted as long as the intended D knew about the case and intended D knew he should have been a D.
60
Relation back after Statute of limitations
To join a CLAIM not originally asserted as long as "relates back", which is fine as long as part of same T&O.
To join a DEFENDANT not originally asserted as long as the intended D knew about the case and intended D knew he should have been a D.
61
Motion to supplement pleadings versus motion to amend pleadings
Motion to supplement is to add things that happened after the pleading was filed. There is no right to supplemental pleadings, must make a motion and court decides.
Amend is to change the pleadings themselves.
62
Rule 11 sanctions procedure: if a party thinks it's warranted on the other party.
Must first serve motion on the other parties but CANNOT file it yet. Must give 21 days to cure. If not satisfied, then file motion with court.
63
Can Court raise Rule 11 sanctions sua sponte?
Yes, and no 21 day safe harbor. Court issues order to show cause why sanctions not appropriate.
64
What is the purpose of Rule 11 sanctions?
To deter, not punish.
65
How many claims can P join together? Must they be related?
As many as P wants. Don't have to be related. But they all must follow SMJ.
66
Requirements for multiple plaintiffs to sue one or multiple defendant(s)
The claims arise from the same T&O and raise at least one common question of law or fact.
67
Three-step analysis for necessary/indispensable parties
Step 1: Who is "necessary?"
(A) without them, court cannot grant complete relief,
(B) their interest will be harmed if they're not joined [most common],
(C) without them, risk that D will have multiple conflicting obligations.
Step 2: A party that meets one of those: Can that person be joined? Look at PJ and not goofing up complete diversity.
Step 3: If that person cannot be joined, Court can proceed without them or dismiss the case. To determine, Court weighs three things:
(A) Is there another forum available (like a state court)?
(B) What is the actual likelihood of harm?
(C) Can Court shape relief to avoid that harm?
68
In suit P against D, what is a claim that D brings against P?
A counterclaim.
69
When D asserts counterclaim against P, what must P do?
Respond under Rule 12 within 21 days of service
70
Compulsory versus permissive counterclaims
Compulsory counterclaim: arise from the same T&O as P's claim. MUST be asserted in this lawsuit or it is waived.
Permissive counterclaim: does not arise from the same T&O as P's claim and hence can sue on it in a later case.
71
When D asserts counterclaim against P, the claim must
Must meet SMJ. Either diversity or FQ, or if not one of those, then supplemental jurisdiction.
72
In suit P against D1 and D2, what is a claim that D1 asserts against D2? What are the requirements for this type of claim?
Crossclaim.
It MUST arise from same T&O. BUT it is NOT compulsory. It may be raised in a later case.
73
Claims against third-parties for indemnity or contribution are often called
Impleader claims
74
Requirements to implead a third-party defendant
(1) D files a "third-party complaint" naming the third-party defendant; and
(2) D serves process on the third-party defendant.
Must have PJ.
D has a right to implead within 14 days after serving answer; after that time, D needs court permission.
75
After D successfully impleads a third-party D, may P assert a claim against them? May the third-party D assert a claim against P?
Yes, both, but only if arise from same T&O and meets SMJ.
76
Intervention requirements
Must be timely.
Intervention of right: A's interest may be harmed if not joined and is not adequately represented.
Permissive intervention: A's claim or defense shares at least one common question of law or fact. Within discretion of the court. Usually okay as long as no prejudice or delay to someone.
Must make sure there's SMJ.
77
Class action types and requirements
Prerequisites:
(1) Numerosity
(2) Commonality
(3) Typicality and
(4) Adequacy of representation
Three types:
(1) Limited fund, many potential claimants, don't want to prejudice people who don't sue [rare!]
(2) Seeking injunction/declaratory relief, NO damages!
(3) Seeking damages: ALSO (A) common issues PREDOMINATE and (B) class action is SUPERIOR. Notice required
78
Which type of class actions allow right to opt out and what kind of notice? Who pays?
Type 3 only. Must be to all reasonably identifiable class members, tell them they can opt out, and that they'll be bound if they don't opt out.
Class rep pays for it.
79
SMJ for class actions
FQ: easy.
Diversity: Modified form, look at Rep only. Rep is diverse from D, and Rep's claim exceeds $75,000.
CAFA: Diversity: Any class member diverse from any D, and aggregate claims of all class members exceeds $5 million. Narrow exceptions for truly local controversies.
80
Requirements re: required initial disclosures
Must be disclosed within 14 days of Rule 26(f) conference.
(1) IDENTITIES OF PEOPLE with discoverable info that you (the party making the disclosure) might use to SUPPORT your claim.
(2) DOCUMENTS you may use to SUPPORT your claim.
(3) COMPUTATION of how you arrived at request for monetary relief
(4) INSURANCE coverage that could pay the judgment.
81
When using expert witness to testify at trial, what must you disclose?
(1) The IDENTITY of the witness
(2) A written report that includes:
Expert's opinions
Bases for the opinions
Facts used to support the opinions
Expert's qualifications and payment info.
82
Requirements for required pre-trial disclosure
No later than 30 days before trial
| Give detail about trial evidence and witnesses to be used at trial.
83
When can a party begin to send discovery requests?
Only after the Rule 26(f) conference. But "requests to produce" may be sent 21 days after service of process, and these are treated as being serve at the Rule 26(f) conference.
84
Process for requesting a deposition for party versus non-party
Party: you "notice the deposition" to the other party.
Non-party: you subpoena them.
85
How to take a deposition where deponent brings documents along?
Subpoena duces tecum
86
How far can a non-party travel for a deposition?
100 mile limit from residence or work
87
Default number of depositions and length
10 depositions and each is a seven-hour day. Parties can agree to more, Court can order more.
88
Can you serve a request to produce on a non-party?
No
89
Requirements for medical exam discovery
Court order, by showing (a) person's health is actually in controversy, and (b) "good cause."
Party seeking exam gets to choose doctor.
90
Duty to supplement
Discovery responses and requests have an ongoing duty
91
General standard for scope of discovery, i.e., what can you discover?
Anything relevant to claim/defense and proportional to needs of the case
92
Work product definition
Work product is any material by party or party's agent (mostly lawyer but need NOT be!) prepared "in anticipation of litigation."
Some work product is "qualified," and parts can be discovered.
Some work product is "absolute" and none of it can be discovered. Includes opinions, theories, mental impressions, etc.
93
How to assert privilege in discovery
Create a privilege log, expressly claim the privilege, describe the materials in detail to show that it is privileged.
94
Discovery problems that might require court to intervene
(1) When a request amounts to annoyance, embarrassment, undue burden. Requires meet and confer to try and work it out in good faith, can result in PROTECTIVE ORDER.
(2) Party doesn't respond fully
(3) Party doesn't respond at all
95
Sanctions in discovery
Less than full response: Order compelling. If still no full response, merits sanctions + costs and maybe contempt of court.
No response: Merits sanctions + costs.
"Merits sanctions": DEEDS: Dismiss case (against P), Enter default judgment (against D), Establishment order (making facts conclusive), Disallow evidence (from disobedient party), Strike pleadings (from disobedient party).
96
Requirements for TRO ex parte
(1) Applicant files a paper UNDER OATH clearly showing will suffer "immediate and irreparable harm" if he must wait until other side is heard
(2) Applicant's lawyer certifies in writing her efforts to give oral or written notice to D or D's lawyer.
(3) If TRO granted, Applicant must post a bond to cover other side's costs.
The TRO itself must specifically describe in detail what D must do (or refrain from doing), why it was issued, and why the threatened harm to P was irreparable. Must be served on D ASAP.
97
How long is a TRO effective?
14 days max with renewal available another 14 days. IF ANY LONGER, it is treated as a preliminary injunction.
98
Is grant of a TRO appealable as of right? What about preliminary injunction?
TRO: No.
Preliminary injunction: Yes.
99
If court issues a TRO, what can D do?
Move to dissolve it.
100
What is the basic function of a preliminary injunction?
To maintain the status quo until court can adjudicate the merits.
101
Can a preliminary injunction be granted ex parte?
No.
102
To get a preliminary injunction, applicant must show
(1) he is likely to suffer irreparable harm if PI not issued
(2) he is likely to win on the merits
(3) balance of hardships favors him (weighing harm to each party)
(4) the injunction is in the public interests.
No right to injunction; entirely within the court's discretion.
If applicant wins, must post bond. PI must specifically state its grounds and describe in detail what D must do or refrain from doing.
The COURT MUST making (1) findings of fact and (2) separate conclusions of law (different from TRO).
103
When can P voluntarily dismiss a case?
Can do so AS OF RIGHT before D answers or before MSJ.
Can do so by motion at any time.
P can do so once without prejudice. After second time, with prejudice.
104
Entry of default versus default judgment
Default is a notion on the docket made by the clerk of court. Cuts off D's right to respond.
Default judgment allows P to recover from D.
105
To get entry of default, what must P do and when?
P must wait until 22nd day after service of process on D, and D doesn't respond. P must REQUEST the entry of default. Does not happen automatically.
Beginning on the 22nd day after service of process, D can still try to respond late, but P has right to request entry of default, and once it's on there, D's right to respond is cut off.
106
How to get a default judgment
If all 4 requirements met, clerk of court can enter default judgment:
(1) D made no response at all;
(2) The claim itself is for a sum certain of money;
(3) Claimant gives affidavit of the sum owed; AND
(4) D is not a minor or incompetent.
If 4 requirements not all met, then must apply to the court. Clerk cannot do it alone. D gets a notice of the hearing only if D had at some point "appeared" in the case. If no appearance, then no notice of the hearing.
107
How can D set aside a default judgment?
By showing (1) good cause and (2) a viable defense.
108
Motion to dismiss for failure to state a claim (12(b)(6)) versus judgment on the pleadings
Same thing. But 12(b)(6) is before D has answered. Judgment on the pleadings is after D has answered.
109
Party moving for summary judgment must show
(1) There is no genuine dispute of material fact; AND
(2) That she is entitled to judgment as a matter of law.
Court may look at evidence, and does so in light most favorable to non-moving party.
110
When can a party move for summary judgment?
No later than 30 days after the close of discovery, but can do so earlier.
111
Can a pleading ever be treated as evidence?
Only if verified under oath.
112
Overview of Rule 26(f) conference
Scheduling order is the anchor:
Rule 26(f) Conference is at least 21 days before the Scheduling Order. Discuss claims, defenses, settlement, and detailed discovery plan no later than 14 days after Rule 26(f) Conference.
Conference -----14 day window----- | [deadline for discovery plan] -----7 day window----- | [deadline for scheduling order]
113
Right to jury trial under 7th Am
Only in federal court and only for suits "at law." Not for suits in equity.
Jury decides all facts underlying law claim, not equitable claim. If a fact underlies both, jury decides it, and jury decides it before judge makes rulings on equity claims.
114
When must party demand jury trial
IN WRITING no later than 14 days after service of last pleading addressing a jury triable issue (usually the answer).
115
Challenges to jurors
For cause: unlimited number, for only good reasons
Peremptory: 3 per side but court can allow more, for any reason but WITHOUT regard to race or gender.
116
How many jurors in civil trials in federal court? How many required for verdict?
6 to 12. Unanimous unless parties agree otherwise.
117
If a party objects to a jury instruction...
Must raise the objection and out of jury hearing. If objection not made before jury is charged, then the objection is waived. Except if there is a plain error in the jury instruction.
118
Forms of jury verdicts
(1) General: jury just says who wins and nothing else. Clerk of court enters judgment.
(2) Special: jury answers written questions but does not say who wins or loses.
(3) General with written questions: Says who wins and answers written question.
If the special and general with written questions are consistent with result, then (1) judge approves and clerk of court enters judgment.
If general verdict with written questions, if ANSWERS are CONSISTENT with each other but NOT with the verdict, the court may enter the judgment consistent with the answers or tell the jury to think again.
If the general verdict with written question, if ANSWERS are INCONSISTENT with each other and at least one is INCONSISTENT with the verdict, the court can't enter judgment and asks jury to think again or order a new trial.
119
When can jurors be impeached?
Only on EXTERNAL matters (e.g., bribery).
120
When bench trial, what must judge record in opinion?
Findings of fact and separate conclusions of law.
121
Judgment as a matter of law (JMOL) versus renewed judgment as a matter of law (RJMOL)
JMOL: After non-moving party has finished putting on evidence, moving party must show "reasonable people could not disagree" with the result the moving party wants. Failing to do so waives right to raise RJMOL.
RJMOL: same thing, but moving party does so after judgment, and must show that the jury reached a conclusion that "reasonable people could not have reached." Time window: within 28 days after judgment. MUST have raised JMOL at appropriate time.
RJMOL MUST be on the same grounds as raised in the JMOL.
122
Motion for a new trial
Time window: Within 28 days after judgment (same window as for RJMOL).
Movant argues there was a non-harmless error.
Party can raise this even if they didn't properly do the JMOL or RJMOL.
123
Remittitur versus additur
When a damage award "shocks the conscience," parties can try to avoid a new trial.
Remittitur: If P gets an outrageously high jury award and a new trial is imminent, D can offer a lower amount. P gets a choice: take the lower amount or risk it all by going to trial again. This is okay in federal court.
Additur: If P gets super low jury award and a new trial is imminent. D can choose to offer P a higher amount or risk it all by going to trial again. This is UNCONSTITUTIONAL in FEDERAL court but okay in state court.
124
Offer of judgment
No later than 14 days before trial, D offer so settle the claim and enter judgment for that amount.
This gives P a choice: take it or risk it by going to trial. If P recovers less than D's offer at trial, then P is liable to D for D's costs incurred after the offer was made.
125
Motion for relief from order or judgment
Grounds and timing:
If clerical error -->any time.
If mistake, excusable neglect, fraud, misrepresentation, new evidence that could not have come to light with due diligence--> reasonable time (1-year max).
If no SMJ --> reasonable time (no limit).
126
Final judgment rule
In general, cannot take an appeal until a "final judgment" has been entered. "Final judgment" is one that determines merits of entire case. Ask: does the court have anything left to do on the merits?
127
If final judgment rule applies, when and how can a party begin an appeal?
If subject to final judgment rule, then within 30 days after the final judgment and by filing a NOTICE OF APPEAL in the DISTRICT court.
128
When can a party appeal without a final judgment?
Six cases:
(1) Orders reviewable as of right (e.g., preliminary injunctions)
(2) Interlocutory Appeal Act: (A) District judge certifies it's a controlling issue of LAW and (B) substantial difference of opinion, and (C) Court of Appeals agrees to hear it.
(3) Collateral Order Doctrine: legal question distinct from merits of case that would be unreviewable if had to wait until final judgment.
(4) Multiple Claims and Parties: When there's a final judgment on a claim or party, they can appeal right away.
(5) Class Actions: class certification decision. Must seek review within 14 days
(6) Extraordinary writ: Mandamus or prohibition.
129
```
Standard of review for:
Questions of law,
questions of fact (bench trial),
questions of fact (jury trial),
discretionary matters
```
Law = de novo
Bench trial facts: clearly erroneous
Jury trial fact: reasonable people could not have made that finding
Discretion: abuse of discretion
130
Requirements of claim preclusion
SFS: Same parties, Final judgment on the merits, Same cause of action.
Step 1: Are Case 1 and Case 2 the same claimant against same defendant?
Step 2: Did Case 1 end with final judgment on the merits? (Anything OTHER THAN jurisdiction, venue, or indispensable parties).
Step 3: Is it the same claim? Federal court (same T&O = "same claim") versus California ("primary rights" personal injury versus property).
Look at law of Forum 1 to see if preclusion applies.
131
Requirements of issue preclusion
PIANO SS
```
Persons bound?
Identical issue?
Actually litigated and determined?
Necessary to the judgment?
Opportunity to litigate (full and fair)
S (Shield)
S (Sword)
```
Shield: [non-mutual defensive issue preclusion] okay, run through the steps.
Sword: [non-mutual offensive issue preclusion]. Okay in federal court IF you also weigh 4 things: FIJI:
(1) FULL and FAIR opportunity to litigate,
(2) same INCENTIVE to litigate strongly,
(3) P could not have JOINED easily in case 1;
(4) no INCONSISTENT findings on the issue.
132
How soon are judgments enforceable?
Not until 30 days after judgment is entered, except if there's a court order.
Injunctions are enforceable immediately.
133
If someone moves from State A to State B, while they're in transit, what is their domicile and why?
State A until they establish physical presence in State B.
Domicile requires (1) physical presence and (2) intent to remain, and does not change until both requirements are met in the new domicile.
134
CA Civ Pro: Personal jurisdiction analysis
Step 1: Statutory: CA PJ reaches the constitutional limit.
Step 2: Constitutional: Contact, Relatedness, Fairness
Contact: Purposeful availment + foreseeability. D must reach out to the forum and it must be foreseeable that D could get sued in the forum.
Relatedness: Does P's claim arise from D's contact with the forum? If yes, called "specific personal jurisdiction." If no, called "general personal jurisdiction." General PJ requires D "at home" in the forum. Humans are "at home" where domiciled. Corporations are at home where continuous and systematic activity, which means (1) where incorporated and (2) where principal place of business.
Fairness: *Only applies to specific personal jurisdiction cases* Weigh/assess (1) burden on D and witnesses [burden must put D at a severe disadvantage in the litigation], (2) state's interest [satisfied if P is a citizen of the state], (3) plaintiff's interest.
135
CA Civ Pro: Definition limited civil case
A case in which amount in controversy does not exceed $25,000.
Features: Limited discovery, no special demurrer, expedited jury trial, no seeking title to land, no declaratory judgment.
Plaintiff MUST note on the complaint that it is a LIMITED civil case.
136
CA Civ Pro: Definition Unlimited civil case
A case in which amount in controversy exceeds $25,000, and general equitable relief, declaratory relief, title to land determination.
137
CA Civ Pro: Small claims cases amounts
Individual plaintiff: $10,000 limit
| Entity plaintiff: $5,000 limit
138
CA Civ Pro: Who initially determines the classification (limited/unlimited) of a case? Can it change? When, by whom? What info can court look at to make classification?
Plaintiff
If new claims make it change, clerk can change it. A party can move to reclassify.
Court can consider materials beyond pleadings, and it MUST consider a judicial arbitration award.
139
CA Civ Pro: If there is a motion to reclassify unlimited to limited, what must the judge find? From limited to unlimited?
From unlimited to limited: (1) there necessarily will be a verdict less than $25,000; or (2) more than $25,000 is virtually unobtainable.
From limited to unlimited: There is a POSSIBILITY the verdict will exceed $25,000.
140
CA Civ Pro: Venue for a "local action" is proper where
The land is.
A "local action" = case related to land
141
CA Civ Pro: General rules for venue for "transitory actions"
A "transitory action" = any case not a local action.
Venue is proper in any county where any D resides at the time of filing.
AND if contract: county where the contract was executed or to be performed.
AND if personal injury or wrongful death: county where the injury occurred.
If ALL D's are outside CA, venue is proper in ANY county.
142
CA Civ Pro: Venue when all D's are outside CA
If ALL D's are outside CA, venue is proper in ANY county.
143
CA Civ Pro: Venue when some D's are outside CA and some are in CA
Venue must be proper with respect to the in CA defendants
144
CA Civ Pro: where venue is for a "mixed case"
"mixed case" = some transitory, some local action
Use the rule for the main part of the relief sought.
145
CA Civ Pro: If original venue is IMPROPER, when must D move to transfer venue?
With or before (1) answer, (2) demurrer, or (3) motion to strike
146
CA Civ Pro: if original venue is PROPER, what must D show on motion to transfer?
Any of:
(1) there is reason to believe an impartial trial is not possible in the current venue
(2) new venue promotes convenience of witnesses and ends of justice
(3) no judge is qualified in current venue
Parties can agree on new venue; if they can't, court will select new venue.
147
CA Civ Pro: If P and D have a venue selection clause, will it be enforced?
Only if the venue would be proper. If the venue would not be proper, then court will not enforce it.
148
CA Civ Pro: If P and D have a valid forum selection clause in another judicial system (i.e., another state or in federal court), will court enforce? How?
Yes, if it is valid. Will invoke forum non conveniens.
149
CA Civ Pro: Forum non conveniens analysis
Same as federal court: look to public and private factors.
Public factors: what law applies, community jury pool, super local controversy should be litigated where it happened.
Private factors: where evidence is and where witnesses are. Valid forum selection clause for the new forum will directly establish private factors weigh in favor of transfer.
150
CA Civ Pro: who may serve process and what must be included?
Any non-party over 18 (same as federal) + summons and copy of complaint
151
CA Civ Pro: personal service requirements (D inside CA)
Any non-party over 18. Can happen anywhere in the state.
152
CA Civ Pro: substituted service requirements (D inside CA)
Can only try substituted service if you first TRY personal service and fail.
Then try:
(1) D's usual abode
(2) leave process with a competent MEMBER OF HOUSEHOLD over 18
(3) inform that person of the contents
(4) then ALSO mailed, first-class service postage pre-paid,
Then effective on 10th day after mailing
153
CA Civ Pro: service by mail requirements (D inside CA)
Unlike federal court, this is SERVICE not waiver of service.
Copy of summons and complaint, and two copies of acknowledgement form are mailed to D, with stamped/addressed return enveloped.
D has 20 days to return form (federal court 30 days).
Service deemed complete when D executes acknowledgment form.
154
CA Civ Pro: serving a corporation (D inside CA)
Can deliver process to registered agent, or officer, or general manager.
155
CA Civ Pro: serving someone out of state
Can be done by any method that would work instate.
ALSO can serve by mail, postage prepaid, return receipt requested. Deemed effective on 15th day after mailing.
156
CA Civ Pro: serving someone outside the U.S.
Same as federal court
157
CA Civ Pro: immunity for in-state appearances as witness, party, lawyer in another civil case?
NO. Not like federal court. Can be served.
158
CA Civ Pro: definition "frivolous"
Something was raised completely without merit or asserted for the sole purpose of harassing an opponent party.
159
CA Civ Pro: pleading requirements
Fact pleading: P must plead the "ultimate facts" that constitute EVERY element of EVERY cause of action, and demand a relief.
Generally must state damages sought EXCEPT in cases of personal injury, wrongful death, or punitive damages. In those cases damages figure MUST be left off. Then D can request "statement of damages" and P must provide within 15 days.
160
CA Civ Pro: If damages are left off the complaint (because it's a situation in which they are forbidden), how can D figure out the damages P seeks?
Request a "statement of damages" and P must provide within 15 days.
161
CA Civ Pro: If personal injury, wrongful death, or punitive damages, and D defaults, what must P do before taking D's default?
P must serve a statement of damages on D.
162
CA Civ Pro: for what causes of action are there special heightened pleading requirements?
Fraud, civil conspiracy, tortious breach of contract, unfair business practices, products liability re: toxins from multiple defendants .
Must plead with particularity.
163
CA Civ Pro: requirements to sue a fictitious Doe defendant
(1) P is genuinely unaware of D's identity
(2) P alleges that she is unaware of D's identity
(3) P states the cause of action is against Doe defendant
164
CA Civ Pro: can pleadings ever be treated as evidence?
Only if they are "verified pleadings" signed under oath.
165
After service, what is time window for D to respond: CA versus Federal Court
CA: 30 days
Federal: 21 days
166
CA Civ Pro: After service, how can D respond?
(1) General demurrer
(2) special demurrer
(3) Motion to quash service of summons
(4) Motion to dismiss or stay under forum non conveniens
(5) Motion to strike
(6) Answer
167
CA Civ Pro: Definition general demurrer
Can be used to assert some common defenses:
(1) Failure to state facts sufficient to constitute a cause of action [remember: P must do EVERY element of EVERY cause of action.]
(2) Lack of SMJ (rare)
168
CA Civ Pro: Special demurrer definition and rules
NOT available in limited civil cases, parties must meet and confer to discuss at least 5 days before demurrer. If parties cannot, D gets automatic 30 day extension.
If they're not raised in special demurrer or answer, defenses waived.
Can be used to assert rare or minor defenses
(1) uncertain, ambiguous, unintelligible pleadings
(2) unclear which D is liable under which theory
(3) failure to include certificate of merit re: architecture, engineering cause of action
(4) misjoinder of parties
(5) another case already exists between the parties
169
CA Civ Pro: vocab: demurrers are either
"sustained" or "overruled"
170
CA Civ Pro: motion to quash service of summons
Used to assert:
| 1) lack of PJ
(2) improper process (problem with papers
(3) improper service of process
171
CA Civ Pro: "special appearance" versus "general appearance"
Special appearance = an appearance made while making motion to quash service of summons that does not consent to PJ.
To avoid waiving defenses in motion to quash service of summons (lack of PJ, improper process, improper service of process), D must make the motion to quash service of summons: before or with a demurrer, answer, or motion to strike.
General appearance = an appearance that implicitly consents to PJ, that engages with merits or asks court for relief.
172
CA Civ Pro: Motion to strike
Any party can move to strike all or part of any pleading that is "irrelevant, false, or improper."
173
CA Civ Pro: Anti-SLAPP motion to strike
Suit by plaintiff against D where D was engaging in protected First Amendment activity
To make anti-SLAPP motion to strike, burden shifts to P to show (1) the probability of winning on the merits or (2) P's case is truly in public interest or behalf of general public.
174
CA Civ Pro: a claim by D against P is called a
Cross-Complaint
175
CA Civ Pro: a claim by D1 against D2 is called a
Cross-Complaint
176
CA Civ Pro: a cross-complaint by D against P must be filed by
Before or at same time as answer
177
CA Civ Pro: a cross-complaint by D1 against D2, requirements and timing
(1) must be same T&O
| (2) may be filed at any time before trial date set
178
CA Civ Pro: a cross-complaint by D against third-party requirements, time window for TPD to respond
(1) may be filed at any time before trial date set
| (2) 30 days
179
CA Civ Pro: P has RIGHT to amend pleadings...
(1) before D files answer or demurrer,
| (2) if demurrer, then after it's filed up to the day before hearing on the demurrer.
180
CA Civ Pro: P may amend pleadings how many times after sustaining demurrers each time?
3 times maximum
181
CA Civ Pro: when is a cross-complaint by D against P compulsory?
When the cross-complaint arises from the same T&O
182
CA Civ Pro: If D's cross-complaint against P is from the same T&O, then...
It's compulsory and must be filed in the case or it is waived.
183
CA Civ Pro: Relation back with fictitious defendants
Relation back with fictitious D WITHIN 3 YEARS OF FILING is okay if (1) the original complaint was filed before the SOL ran, (2) contained charging allegations against the fictitious D, and (3) P was genuinely ignorant of D's identity.
If not within 3 years of filing, then not okay.
184
CA Civ Pro: Are there required disclosures?
No.
185
CA Civ Pro: Depositions, compare in federal court
Federal court = presumptive limit of 10
CA = no presumptive limit
Both = one seven-hour day = 1 deposition
186
CA Civ Pro: Interrogatories
35 limit in unlimited civil case, party may seek more and other party can fight with a protective order
Form interrogatories: unlimited number, don't contribute to 35 limit.
Written okay but cannot contain subparts.
187
CA Civ Pro: Requests to Produce
No limit on number of requests. (Like federal, only can serve on party.
188
CA Civ Pro: How to get discovery from non-party?
Take non-party's deposition AND also serve the non-party with a subpoena duces tecum.
Business records may be subpoenaed without a deposition.
189
CA Civ Pro: medical exam
P must get court order (like federal court)
P has right to medical exam (and may choose doctor) in personal injury cases.
If physical exam, lawyer may be present. If mental exam, needs court order allowing lawyer presence.
190
CA Civ Pro: Requests for admission
Max number allowed: 35
| But NO limit on number of requests to admit the genuineness of documents
191
CA Civ Pro: Discovery in limited cases
1 Deposition
35 combined total: Interrogatories, inspection, requests for admission.
Only way to get additional discovery is with court order
192
CA Civ Pro: Supplemental discovery
Parties have no duty to update responses to old requests as they learn new info throughout the case (UNLIKE federal court).
In CA, party must request supplemental discovery.
Any single discovery request can be requested to supplement twice before trial date is set.
193
CA Civ Pro: Right to discovery versus right to privacy
If party wants something protected by CA constitution right to privacy, then court balances the need for the info versus interest in privacy.
194
CA Civ Pro: Work product rule versus federal rule
Federal court: work product = anything created by anybody in anticipation of litigation (not just lawyers)
CA: work product = only things created by an attorney in anticipation of litigation.
195
CA Civ Pro: discovery enforcement mechanisms
Court may sanction anyone (including parties or attorneys) but must give notice and opportunity to be heard.
Monetary sanctions and merits sanctions.
Merits:
(1) Establishment order,
(2) Refusal to allow a party to support its position with evidence at trial
(3) Striking pleadings
(4) Dismissing P's case
(5) Entering default judgment against D
196
CA Civ Pro: Who is an "interpleader"
Someone with a possession of property who knows he'll get sued a bunch of times by a bunch of P's over the property, and who wants to litigate with all of them at once
197
CA Civ Pro: Class action requirements
Only one type of class action.
Rep must demonstrate (1) an ascertainable class and (2) a "well-defined community of interest."
A "well-defined community of interest" = common questions predominate, rep is adequate, the class will result in substantial benefit to parties and court.
198
CA Civ Pro: Voluntary dismissal
P can move to voluntarily dismiss suit any time BEFORE trial starts. With out without prejudice is up to court.
If P moves to voluntarily dismiss AFTER trial starts, the dismissal is presumptively with prejudice unless (1) parties agree otherwise or (2) the court finds good cause.
199
CA Civ Pro: Involuntary dismissal
Discretionary and mandatory situations
Discretion: if case has not been brought to trial within 2 years of filing, court may dismiss it.
Mandatory: (1) if case has not been brought to trial within 5 years of filing or (2) process is not served within 3 years of filing
200
CA Civ Pro: Default
If D fails to respond to complaint within 30 days:
(1) D must be given NOTICE of the application for entry of default
(2) Can be made by clerk of court if all of the following are true:
- D made no response at all
- Claim is on contract or judgment
- Claim is for a sum certain in money
- D was not served by publication, AND
- P provides affidavit with relevant facts.
If any no true, P must go to court for hearing.
P can only get as much as was stated in the pleading.
201
CA Civ Pro: Summary judgment versus summary adjudication
Summary judgment disposes of all causes of action in a case
Summary adjudication disposes of less than the whole case (e.g., one cause of action or one element of a cause of action).
202
CA Civ Pro: Summary judgment/adjudication procedure:
Movant must file and serve separate statement of material facts she claims are undisputed, with references to supporting evidence. Non-moving party may do the same but to dispute.
203
CA Civ Pro: Case management conference
Like Federal Rule 26(f) conference, except parties do not have to submit a discovery plan.
204
CA Civ Pro: ADR procedures
Most large counties, if judge thinks P will obtain less than $50,000 then parties go to arbitration. After, a party can go to trial if they want. No rules evidence, but normal discovery rules.
If a P wins at arbitration, and does not get a better result at trial, then P must pay D's costs.
205
CA Civ Pro: right to jury trial
Follows 7th Am Law/Equity split. BUT equity facts are established by judge first. "Equity first doctrine."
And if mostly equity with just incidental fact issues, no jury trial at all. "Equity clean-up doctrine."
206
CA Civ Pro: when must a party announce desire for jury trial?
At the time case is set for trial or within 5 days
207
CA Civ Pro: how many jurors in a case? How many for a verdict?
12 unless parties agree to fewer.
| 3/4 necessary for a verdict.
208
CA Civ Pro: jury strike procedures
For cause: unlimited
Peremptory: six, and broader than federal to include race, gender, national origin, sexual orientation, or similar grounds.
209
CA Civ Pro:
If D moves at the end of P's evidence, it's called...
But if at end of all evidence, it's called....
What's the standard?
Motion for non-suit
Motion for directed verdict
Standard: reasonable people could not disagree as to the result
210
CA Civ Pro: motion for judgment notwithstanding the verdict
Standard: reasonable people could not have come to the result
Unlike federal court, this doesn't need to first come up as a motion for directed verdict at the close of evidence.
211
CA Civ Pro: New trial when damages excessive or insufficient; test and solutions?
Shocks the conscience
Remittitur and additur -- both okay.
212
CA Civ Pro: Expedited jury trial
Most civil cases subject to this, parties in unlimited civil cases can agree to this. If parties voluntarily choose this, they waive right to appeal.
8 jurors per side, 4 peremptory challenges per side, 6 votes for a verdict, 5 hours to do everything (voir dire to closing).
213
CA Civ Pro: judgments in limited civil cases are appealed to
Appellate Department of the Superior Court
214
CA Civ Pro: judgments in unlimited civil cases are appealed to
The Court of Appeal in the district to which the county is assigned
215
CA Civ Pro: by statute, these issues are subject to interlocutory review
(1) order denying class certification
(2) order granting new trial
(3) order granting motion to quash service of summons
(4) order granting stay/dismissal for forum non conveniens
216
CA Civ Pro: writ of mandate or prohibition
Anything else not covered by statute for interlocutory appeal can try to get a separate writ of mandate or writ of prohibition.
Applicant must show:
(1) will suffer irreparable harm
(2) the normal route (waiting for judgment) is inadequate
(3) has beneficial interest in outcome of writ proceeding
Court of Appeal has discretion.
217
CA Civ Pro: preclusive effect of judgment that has been appealed
Federal law says it still does have preclusive effect
| California law says it does not
218
CA Civ Pro: no preclusive effect when something not "on the merits." Which means
Same as federal law (jurisdiction, venue, indispensable parties) PLUS statute of limitations
219
CA Civ Pro: definition of claim for claim preclusion
Primary Rights theory: personal injury and injury to property are NOT the same claim, even when from same T&O.
220
FRCP: requirements for complaint
(1) short and plain statement for relief
(2) grounds for SMJ
(3) demand for judgment for relief (can be in alternative)
221
FRCP: In FQ case, action commences for SOL when
The complaint is filed
222
Federal Interpleader Act allows an interpleader if:
| Compare FRCP Rule 22 interpleader rules
Federal Interpleader Act: The subject of the action is $500 or more and there's diversity between ANY two claimants.
Rule 22: normal complete diversity requirements or federal question
223
FRCP: what's considered an "appearance" by D?
D has made any action that D intends to contest on merits
224
FRCP: if D has appeared in the case but later defaults, what is the default judgment timeline
D gets notice, then 7 days, then hearing.
225
FRCP: the performance of a condition precedent can be pleaded ____; denial of performance or occurrence must be pleaded ____.
Generally
With specificity and particularity
226
FRCP: A motion to amend judgment must be made within how many days after judgment
28 days, no extensions
227
FRCP: "Notice" for 23(b)(3) class action consists of
(1) nature of action
(2) definition of the class
(3) the class claims/issues/defenses
(4) binding effect of class judgment
228
FRCP: provisional remedies are what? Governed by what law?
Attachment, garnishment, replevin. Governed by state law
229
FRCP: define attachment, garnishment, replevin
Attachment: seizing the property of a party
Garnishment: seizing the property of a third party
Replevin: when P allowed to possess the goods in issue
230
FRCP: Requirements for shareholder derivative suit complaint
(1) P was a shareholder at time (or has shares now by operation of law)
(2) action is NOT for collusion for jurisdiction purposes
(3) demand was made to directors (this element must be pleaded with particularity)
*Corp is treated as P for damages amount but treated as D for diversity purposes
231
FRCP: in shareholder derivative suit, how is a corporation treated for damages calculations and jurisdiction purposes?
Treated as a P for damages calculations
Treated as a D for diversity purposes
232
FRCP: The hard deadlines that MAY NOT be extended
28 days: RJMOL, motion to amend judgment, motion for new trial
Motion for relief from judgment
233
FRCP: What are waivable threshold defenses and when must they be raised?
Rule 12
They must be raised in FIRST response, whatever it is (motion or answer):
(1) Lack of PJ
(2) Improper venue
(3) improper process/service of process
234
FRCP: Multiple P's with DIFFERENT rights arising out of some T&O. Can they aggregate against a single D to meet amount in controversy?
No. Multiple P's cannot aggregate separate rights.
235
FRCP: Multiple P's with SAME right arising out of some T&O. Can they aggregate against a single D to meet amount in controversy?
Yes, because it's the same right.
236
Work product is discoverable if
(1) not made in anticipation of litigation; or
| (2) even if made in anticipation of litigation, there is "substantial need and undue hardship."
237
When must party A disclose to party B a list of people with discoverable info that a party A will use to support his own case?
Within 14 days after the Rule 26(f) conference.
238
Venue fallback provision for businesses
If there is no venue proper where (1) substantial events giving rise to action occurred and (2) there is no district in a state where all D's reside, then fallback provision:
Venue is proper where any defendant "resides," which means where D is subject to personal jurisdiction related to the action.
239
How long does a party have to amend a pleading as a matter of course?
21 days. A party may amend a pleading (a complaint or answer) within 21 days as a matter of course.
240
When is an action commenced for SOL purposes in a federal question case? In a diversity case?
Federal Q: when the complaint is filed with the court.
Diversity: whatever state law would say counts for SOL purposes.
241
When venue is initially proper, where can the action be transferred?
(1) where the action could have been brought or
| (2) where the parties agree, as long as transferee court has PJ over D and SMJ.
242
If D1 has multiple cross-claims against D2, do they have to be same transaction and occurrence?
The first must be same T&O, but the rest can be totally unrelated.
243
When can a party move for a new trial, after judgment, when there's been newly discovered evidence?
1 year cap, and the evidence must not have been discoverable by due diligence at the time.
244
What law do federal courts look to to assess whether a judgment is excessively high or low?
State law
245
When a party requests a jury trial, how to do it?
Must be within 14 days after service presenting a jury triable issue (usually the answer), AND must be served on ALL parties
246
What happens if trial presents an issue not raised in the complaint, that issue is tried, and no one protests?
The issue will be treated as if it were in the complaint.
The party who wants to oppose it must object, otherwise it's an implied consent. Can also expressly consent.
247
If D hasn't responded AT ALL, who can enter default judgment and must there be additional notice to D?
The clerk of court; no extra notice to D
248
When there are equity and law claims, which are tried first in federal court?
"Equity clean up doctrine": The law claims are decided by jury first, then judge decides the equity claims. The jury's findings on fact on the equity claims will be conclusive on the judge if they overlap into the equity claims.
249
When there's multiple claims/parties and only some have been disposed before trial, can those be appealed immediately? How?
Yes, but only if judge allows and finds no just reason for delay.
250
What standard of review for jury instructions when nobody objected to the jury instructions at trial?
Only plain error review.
251
Standard of review for RJMOL and motion for new trial
RJMOL: de novo review
Motion for new trial: abuse of discretion
252
Bar versus merger re: claim preclusion
"Bar" = claim preclusion when P loses first suit
"Merger" = claim preclusion when P wins first suit
253
When and how can P find out about D's insurance ability to pay a judgment?
As a required disclosure and without request
254
Indispensable parties: is a joint tortfeasor an indispensable party?
No. Joint tortfeasors are not indispensable parties.
255
Requirements for res judicata/claim preclusion
(1) Final judgment on the merits
(2) same claimant against same defendant
(3) same cause of action
256
Look to state or federal law in diversity cases about: (1) when to submit facts to jury and (2) what is sufficient evidence for jury triable issue?
Only follow federal law for both.
Look only to federal for when to submit facts to jury and for what is considered sufficient evidence for jury triable issue.
257
When judge finds there's enough evidence to resolve an issue, can he resolve it himself?
In a jury trial: he may do so ONLY IF he finds that a reasonable jury could not find otherwise.
If a non-jury trial: he may do so ONLY IF the parties have been heard on the issue.
258
Two dismissal rule
If plaintiff has voluntarily dismissed (in state or federal court) once before on the claim, then a second voluntary dismissal is with prejudice.
259
What to do in MSJ when a party (1) fails to support a fact, or (2) a party fails to dispute a fact
In either case, the court MAY consider it undisputed and grant summary judgment, even if it's a material fact.
