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Bar Exam: Outline > Civil Procedure (MBE/MEE) > Flashcards

Civil Procedure (MBE/MEE) Flashcards

1
Q

Federal Question Jurisdiction

A
  • Exists for a complaint that “arises under” federal law
  • Well-Pleaded Complaint Rule: FQ exists only when federal issue is presented on face of the complaint (P’s cause of action; not defenses, answers or counterclaims)
  • Can be either express or implied
  • No amount-in-controversy or diversity requirement
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2
Q

Diveristy Jurisdiction

A

Cases between citizens of different states, or citizens of a state and a foreign country, if the amount in controversy exceeds $75,000, exclusive of interests and costs.
* Complete Diversity: Every citizenship rep’d on P’s side must be different from every citizenship rep’d on D’s side.
* Amount in Controversy: Any good faith allegation will suffice unless there is legal certainty P will not be able to recover alleged amount.

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3
Q

Diversity Jurisdiction: Minimal Diversity Exceptions

A

Exists when any P is diverse from any D, even if other Ps and Ds overlap. Permitted in following circumstances:
* Federal Interpleader Act (statutory interpleader)
* Class Actions with at least 100 class members and claims worth more than $5M (CAFA)
* Interstate mass torts if at least 75 people died in one accident and Ps and Ds are from many different states. Requires minimal diversity and substantial part of accident took place in another state or location from where D resides..

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4
Q

Diversity of Citizenship: Individuals

A
  • Citizens of the state or country of domicile
  • Domicile: State in which an individual is present and intends to reside indefinitely
  • Individual can only have one domicile at a time
  • Domicile determined when action is commenced
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5
Q

Diversity of Citizenship: Corporations

A

Citizenship is state of incorporation and state where it has its principal place of business (“nerve center” from which the high-level officers direct, control, and coordinate the activities of the corporation)

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6
Q

Diversity of Citizenship: Representative Parties

A

Generally, citizenship of the representative parties controls. Exceptions:
* For litigation involving a decedent’s estate, citizenship of decedent controls.
* For guardianship of a minor/incompetent person, citizenship of infant/incompetent person controls.

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7
Q

Diversity of Citizenship: Class Actions

A
  • Citizenship of the named or representative parties counts
  • Unnamed class members may join without regard to citizenship
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8
Q

Diversity of Citizenship: Partners and Unincorporated Associations

A
  • Citizen of every state of which its members are citizens
  • Applies to partnerships, LPs, trade associations, and unions
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9
Q

Amount in Controversy: Aggregation

A

Permitted for:
* (i) single P against single D,
* (ii) multiple Ps with common/undivided interest, or
* (iii) single P against multiple Ds, if Ds are jointly liable (treated as one D)

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10
Q

Diversity Jurisdiction: Creating or Destroying Diversity

A
  • Actions that create/destroy diversity permitted so long as not “shams”/fraudulent.
  • Moving: permitted, even if done with purpose of affecting diversity, so long as change in domicile is genuine
  • Assignment of a claim: permitted so long as assignment is real (for value), complete, and not collusive
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11
Q

Supplemental Jurisdiction

A

Federal court with JX may exercise SJ over claims which court would not independently have SMJ, but that arise out of a “common nucleus of operative fact,” such that all claims should be tried in a single proceeding

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12
Q

Supplemental Jurisdiction: FQJ

A
  • Court may exercise supplemental jurisdiction over state-law claim if claims arise out of “same common nucleus of operative fact”
  • Applies whether or not those claims involve the joinder of an additional party
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13
Q

Supplemental Jurisdiction: DJ

A

In DJ cases, statute kills supplemental jurisdiction over certain claims by P, never by D:
* Claims by Ps against persons made parties under Rule 14 (third party impleader), Rule 19 (required joinder), Rule 20 (permissive joinder), Rule 24 (intervenor),
* Claims by persons proposed to be joined as Ps under Rule 19 (required joinder) or seeking to intervene as plaintiffs under Rule 24 (intervenor)

Note: Supplemental jurisdiction in diversity cases does not EVER allow you to join a non-diverse defendant or non-diverse plaintiff.

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14
Q

Removal Jurisdiction

A
  • D may remove case from state court to federal district court for the district and division in which the state court action is pending
  • Removal is proper ONLY if case could have been brought originally in federal court.
  • Right to remove determined by pleadings filed when notice to remove is filed
  • Notice: D must file notice within 30 days after reciept by or service on D of initial pleading
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15
Q

Removal Jurisdiction under Diversity Jurisdiction

A
  • Diversity must exist at time of filing of original action as well as time notice of removal is filed, unless (i) party preventing diversity is dismissed, or (ii) nondiverse party against whom P has no colorable claim was fraudulently joined to defeat diversity
  • If removal based solely on DJ, claim may be removed only if no D is a citzen of state in which action was filed
  • Removal based on DJ cannot occur more than one year after action commenced unless P acted in bad faith
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16
Q

Removal Jurisdiction under Federal Question Jurisdiction

A
  • If FQ claims are joined with claims that aren’t independently removable, entire case may be removed
  • Notice: Only Ds against whom federal claim is filed must consent/join in removal
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17
Q

Removal Jurisdiction: Remand

A
  • Lack of SMJ: Any time before final judgment is rendered
  • Other reasons: Motion to remand for any defect other than SMJ must be within 30 days after filing of notice of removal
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18
Q

Personal Jurisdiction: Due Process

A

Federal court may not exercise PJ over a D unless the D has “minimum contacts” with the forum state and the exercise of JX would be fair and reasonable

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19
Q

Personal Jurisdiction: Defenses

A

Lack of PJ, insufficiency of process, or service of process must be raised at the first opportunity or it is waived.
* Must be raised in either pre-answer motion or answer, whichever comes first.

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20
Q

Personal Jurisdiction: Long-arm Statute

A

Authorizes PJ over nonresidents who engage in some activity in state or cause some action to occur within state to extent permissible under Due Process Clause

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21
Q

Personal Jurisdiction: General Jurisdiction

A

P can assert any claim against the D, even if it is unrelated to the D’s contacts with the forum state. Bases for GJ are:
* Physical presence within state
* Domicile
* Consent

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22
Q

General Jurisdiction: Physical Presence within State

A

Service of process on D while she is physically present in the state, except:
* If the person was in state only to answer a summons, or
* Persons brought to the state by force or fraud

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23
Q

General Jurisdiction: Domicile

A

If authorized by statute, a state has JX over person/corporation domiciled in state

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24
Q

General Jurisdiction: Consent

A

D can expressly consent to JX by K, stipulation, or by authorizing an agent; impliedly through conduct; or voluntarily through appearance in court (unless to object to JX)

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25
Q

General Jurisdiction: Corporations

A
  • Relatedness Test: Whether a corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state
  • Corporate D is always at home in the state of incorporation and the state of its principal place of business (and, in exceptional cases, a state in which D’s operations are so substantial and of such a nature as to render the corporation at home there as well)
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26
Q

Personal Jurisdiction: Specific Jurisdiction

A

Satisfied if nonresident D has certain minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice

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27
Q

Specific Jurisdiction: Minimum Contacts

A

Minimum contacts require purposeful availment and relatedness

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28
Q

Minimum Contacts: Purposeful Availment

A

D’s contacts with forum state must be purposeful and substantial, such that D should reasonably anticipate (foresee) being taken to court there

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29
Q

Minimum Contacts: Relatedness

A

Specific Jurisdiction: Cause of action must arise out of or relate to a D’s contact with forum state, even if it’s the only contact
General Jurisdiction: D must be domiciled in or have continuous and systematic contacts with the forum state

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30
Q

Minimum Contacts: Imputed Contacts

A
  • Partnerships: Each partner is generally an agent of partnership
  • Corporations: Out-of-state corporation’s contacts with forum state doesn’t automatically establish JX over wholly-owned subsidiary unless it is parent’s alter ego or acting as agent
  • Employees/agents: contacts by nonresident employer’s agents/employees imputed to employer if acting within the scope of agency/employment (not usually applicable to independent contractors)
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31
Q

Specific Jurisdiction: Fair Play and Substantial Justice

A

Once minimum contacts are established, court must still determine if maintenance of the action would “offend traditional notions of fair play and substantial justice.” Factors include:
1. Interest of forum state in adjudicating matter
2. Burden on D of appearing in case (less for corporation than individual)
3. Interest of judicial system in efficient resolution of controversies, and
4. Shared interests of the states in promoting common social policies

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32
Q

Specific Jurisdiction: Internet Websites

A

JX over a nonresident’s website is based on the degree of interactivity between the website and the forum, ranging from passive sites to those that are integral to D’s business

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33
Q

Specific Jurisdiction: Contract Suits

A
  • K can be a significant factor in determining whether minimum contacts exist
  • Choice-of-law provisions are a significant factor as they establish that the nonresident purposefully availed herself to benefits of forum state’s laws
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34
Q

Personal Jursdiction: In Rem Jurisdiction

A
  • Gives court authority to determine issues concerning rights to real/personal property
  • Due Process: Proceedings against property must still satisfy due-process requirements for PJ and property must generally be present within the forum state
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35
Q

Personal Jurisdiction: Quasi in Rem

A
  • Determines only interests of parties toaction regarding property located in forum state (e.g., lien foreclosure or quiet title action), and not personally binding against D
  • Due Process: quasi-in-rem actions are subject to same minimum contact tests as specific jurisdiction. If the property is the subject of the suit, this suggests there will be minimum contacts.
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36
Q

Federal Exceptions to Personal Jurisdiction: Federal Interpleader Act

A
  • Authorizes nation-wide service of process, and service anywhere in the U.S. establishes PJ
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37
Q

Federal Exceptions to Personal Jurisdiction: Bulge Provision

A

Allows service within 100 miles of federal courthouse, even in another state, in two situations:
* (i) For impleading third party-defendants under Rule 14; and
* (ii) For joining necessary parties under Rule 19

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38
Q

Federal Exceptions to Personal Jurisdiction: Rule 4(k)(2)

A

When the P is suing under federal law and no state has PJ over the D, the federal court can exercise PJ so long as the D has minimum contacts with the U.S. as a whole.

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39
Q

Venue: General Rule

A

Venue is proper in:
* (i) District in which any D resides if all Ds reside in the state where the district is located;
* (ii) Where a substantial part of the events or omissions occurred, or where the property is situated; or
* (iii) If neither of above apply, venue is proper in a judicial district where any D is subject to PJ

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40
Q

Venue: Residence

A
  • Individual: Judicial district where D is domiciled
  • Business Entity: In every judicial district where D subject to PJ; or if P is a business entity, where principal place of business is located
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41
Q

Change of Venue: Original Venue Proper

A
  • Transfer permitted to any district where case might have been brought or to which all parties consent.
  • DJ: New district court must apply law from previous district court.
  • FQ: New district court in another appellate circuit will apply federal law as interpreted by its court of appeals.
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42
Q

Change of Venue: Original Venue Improper

A
  • Dismiss case or transfer case to proper district if in interest of justice
  • DJ: District court to which case is transferred applies choice-of-law rules of state in which it is located
  • FQ: New court will apply its own court of appeals’ interpretation of law
  • No PJ: A court lacking PJ over D may transfer case to different venue
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43
Q

Venue: Special Venue Rules

A
  • Suit against federal officer/employee in official capacity: Venue proper where (i) any D resides, (ii) substantial portions of events occurred or property located, (ii) where P resides if no real property involved
  • Federal Tort Claims Act: Venue proper where (i) P resides, (ii) act/omission occurred
  • Foreign resident: Venue proper in any judicial district
  • Foreign government: Venue proper where (i) substantial events occurred or property is located, (ii) in federal district court of Washington, D.C.
  • Multiparty, multiforum litigation: Venue proper where (i) D resides, (ii) substantial part of accident occurred
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44
Q

Forum Non Conveniens

A
  • Only used when forum that is deemed most appropriate for the action is a state or foreign court
  • Burden generally on D, but if forum-selection clause designates a state or foreign court, burden shifts to P
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45
Q

Erie Doctrine: In General

A
  • Federal Question: Federal substantive and procedural law controls, as well as federal common law
  • Diversity Jurisdiction: State substantive law and federal procedural law
  • Supplementation Jurisdiction: State substantive law for state-law claim
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46
Q

Erie Doctrine: Federal Statute/Rule On Point

A

If there is valid federal statute on point when state and federal laws conflict:
(1) Apply federal law
(2) Before applying a Federal Rule, court must determine Rule is valid under Rules Enabling Act: Does the Federal Rule abridge, enlarge, or modify any substantive right?
* If no, apply Federal Rule.
* If yes, apply Federal Rule only if it incidentally affects a litigant’s substantive rights.

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47
Q

Erie Doctrine: No Federal Statute/Rule On Point

A

Follow the Twin Aims of Erie:

(1) To avoid forum shopping
* Apply state law if failure to do so would lead to different outcomes in state and federal court

(2) To avoid the inequitable administration of justice

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48
Q

Erie Doctrine: Examples of Substantive Law

A
  • Elements of claim or affirmative defense
  • Statute of limitations and tolling provisions
  • Burden of proof
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49
Q

Erie Doctrine: Examples of Procedural Law

A
  • Judge/jury allocation
  • Assessment of attorney’s fees
  • Equitable/legal determination
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50
Q

Erie Doctrine: Federal Common Law

A
  • Judge-made federal law that is created when there is no applicable federal statute or constitutional provision
  • Preempts any state or local law or rule
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51
Q

Erie Doctrine: Federal Common Law Applications

A

For FQJ, apply federal common law in following instances:
* Admiralty cases
* When U.S. is a party to case
* Interstate disputes
* Cases implicating relations with foreign countries
* Cases in which government acts in proprietary role
* When Congress left a gap in statutory scheme

For DJ, apply when a “uniquely federal interest” is at stake and significant conflict exists between that interest and operation of state law.

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52
Q

Erie Doctrine: State conflict-of-law rules

A

Federal court must apply state’s conflict-of-law rules
* DJ: District court bound by conflict-of-laws rules of state in which district court is located to the extent that state’s rules are valid under Full Faith and Credit and DPC

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53
Q

Service of Process: Timing

A

Within 90 days after filing of complaint

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54
Q

Service of Process: Methods of Service

A

For individual:
* Personally
* At D’s usual place of abode with a person of suitable age/discretion who resides there, or
* Delivering to D’s agent

For corporations/associations:
* To officer or agent, or
* By following state law

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55
Q

Waiver of Service of Process

A
  • Request for waiver must be in writing annd must give D reasonable time of at least 30 days after request to return waiver
  • Effect: Extends time to service answer from 21 days (after service of process) to 60 days or 90 days if foreign (after waiver request sent)
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56
Q

Temporary Restraining Order

A
  • Timing: Effective for a limited time: no longer than 14 days unless good cause exists or adversary consents.
  • Notice: May be issued without notice if immediate and irreparable injury will result and movant’s attorney certifies efforts made to give notice and why notice should not be required
  • Review: Not generally immediately appealable

Note: If TRO is improperly granted for extended period of time without good cause, treat it as a 14 day period.

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57
Q

Temporary Restraining Order: Motion to Dissolve

A

If a TRO is issued without notice, the adverse party may appear and move to dissolve or modify the TRO (must give two days’ notice unless court sets shorter time)

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58
Q

Preliminary Injunction

A

May be issued to a P if:
1. P is likely to succeed on the merits
2. P is likely to suffer irreparable harm in the absence of relief
3. Balance of equities is in P’s favor, and
4. Injunction is in public interest

Note: Notice must be provided to D

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59
Q

Permanent Injunctions

A

Same standard as for preliminary injunction but P must show actual success on the merits

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60
Q

Complaint: Timing

A
  • Filing generally occurs before service
  • Service generally within 90 days of filling
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61
Q

Complaint: Requirements

A

Must include
* Short/plain statements of court’s SMJ
* P’s claim establishing entitlement to relief, and
* Demand for judgment for relief sought

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62
Q

Complaint: Special Pleadings

A

Fraud, mistake, or claims for special damages must be specially pleaded in a greater level of detail than is generally required in a complaint

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63
Q

Rule 12(b)(6) Motion to Dismiss

A

May be used to raise:
* Lack of SMJ
* Lack of PJ (including both lack of power and defects in service of process)
* Improper venue
* Failure to state a claim upon which relief can be granted
* Failure to join a necessary party
* Forum non conveniens

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64
Q

Rule 12(b) Motion to Dismiss: Timing and Waiver

A
  • General Rule: Within 21 days of service
  • Lack of SMJ: Can be raised at any time
  • Lack of PJ, improper venue, insufficient process or service: Can be raised in pre-answer motion or answer, or within time to amend answer as of right; otherwise waived
  • Failure to state a claim upon which relief can be granted and failure to join necessary/indespensable party: Can be raised in any pleading, motion for judgment on pleadings, or at trial
65
Q

Rule 12(b)(6): Twiqbal Standard

A
  • Complaint must allege sufficient facts that, if true, would “state a claim to relief that is plausible on its face” in order to defeat a motion to dismiss for failure to state a claim
  • Well-pleaded factual allegations are entitled to presumption of truth, but conclusory allegations of law are not entitled to presumption of truth
  • Must analyze if facts are plausible, not merely conceivable
  • Otherwise, resolve doubts/inferences in P’s favor and view pleading in light most favorable to P
66
Q

Rule 12(b)(6): Scope

A

Court can consider only allegations and attached exhibits in the complaint

67
Q

Motion for Judgment on the Pleadings

A
  • After answer filed, allows court to dispose of a case when **material facts are not in dispute ** and judgment on merits can be achieved based on content of pleadings
  • If facts in affidavits or discovery documents must be considered, must file for summary judgment instead of judgment on pleadings
68
Q

Motion for a More Definite Statement

A
  • Responding party may move for more definite statement if claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading
  • Disfavored motion
69
Q

Motion to Strike

A
  • When pleading contains insufficient defense, or redundant, immaterial, impertinent, or scandalous material, court may order such defense or material stricken if NOT relevant to case
70
Q

Answer: Timing

A
  • No Motion to Dismiss: 21 days after being served with summons and complaint (or 60/90 days if D timely waived service)
  • Motion to Dismiss: No filing while motion is pending, and within 14 days after notice of court’s action
71
Q

Answer: Scope/Waiver

A
  • Admission/Denial: Answer must admit/deny P’s allegations, or plead lack of sufficient knowledge (with reasonable investigation)
  • Affirmative Defenses: D must state them or they are deemed waive
72
Q

Reply: Timing

A

P must respond to D’s answer within 21 days after being served with order to reply

73
Q

Amendments: As Of Right

A

May be amended once at any time within 21 days of service of the pleading or within 21 days of the defendant’s response, if there is one

74
Q

Amendments: By Leave of Court

A

Court should freely give leave to amend a pleading when justice so requires and will not result in undue prejudice to opposing party

75
Q

Amendments: Relation Back

A

Key date for purposes of tolling the SOL is the date of the original pleading, rather than date of the amendment:
* If SOL has NOT yet run (still open), this doctrine does not matter.
* If SOL has run out, doctrine of relation back determines whether amended pleading is allowed (relates back) or time-barred (does not relate back).

76
Q

Relation Back: New Claim

A

Relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction, or occurrence as original pleading

77
Q

Relation Back: New Party

A

Relates back to date of original pleading if amendment asserts claim/defense that:
* arose out of same conduct, transaction or occurrence as original pleading
* New party receives notice of action within 90 days after original complaint filed
* D knew or should have known about action but for mistake concerning proper party’s identity

78
Q

Amendment: Time to Respond

A

Within 14 days after service of amended pleading or time left on original pleading, whichever is later

79
Q

Rule 11 Sanctions

A
  • Court may impose sanctions limited to what suffices to deter repetition of conduct by others similarly situated
  • Does not apply to mandatory disclosures and discovery requests, responses, and objections
  • Types: (i) nonmonetary directives; (ii) penalties to court; or (iii) if imposed on motion, payments to movant for attorney’s fees and other expenses directly resulting from violation
  • Safe Harbor: Requires party serving sanctions motion to refrain from filing it for 21 days after serving it to allow a violation to be corrected (e.g., by dismissing a claim)
80
Q

Permissive Party Joinder: General Rule

A

Governed by Rule 20. Any number of Ps/Ds may join if:
1. They assert claims arising out of the same transaction(s) or occurrence(s)
2. There is a common question of law or fact

81
Q

Permissive Party Joinder: Subject Matter Jurisdiction

A

Diversity: No party can be joined whose presence would destroy complete diversity, even if other joinder rules are satisfied

Amount in Controversy: SJ is permitted for JX amount less than or equal to $75,000 if in a suit by multiple Ps against a single D, and one P has a claim that exceeds $75k. Otherwise, parties must meet $75k AIC requirement.

82
Q

Compulsory Party Joinder: General Rule

A

Governed by Rule 19. Necessary parties MUST be joined if feasible (will not deprive court of SMJ, i.e., DJ, and court can exercise PJ, including by using bulge provision)

If a necessary party CANNOT be joined, court decides whether to continue without necessary party or dismiss whole suit (i.e., necessary party is an indespensable party)

83
Q

Compulsory Party Joinder: Necessary Party

A

Necessary for just adjudication because:
* Absent that party, complete relief cannot be accorded to the existing parties;
* Necessary party has an interest in the subject of the litigation which will be impeded by this litigation; or
* There is a substantial risk of double or inconsistent liability imposed on others if party is not brought into the case.

Note: A potential D who may be jointly and severally liable is not a necessary party.

84
Q

Intervention: Subject Matter Jurisdiction

A
  • No supplemental jurisdiction for either permissive or intervention as of right when jurisdiction is based on DJ.
  • Intervenors must satisfy complete diversity and have claims that exceeds $75k.
85
Q

Intervention as of right

A

Governed by Rule 24. Intervention as of right is available when:
* Nonparty has interest in property or transaction that is subject matter of action
* Disposition of action may impair nonparty’s interest; and
* Nonparty’s interest not adequately represented by existing parties

86
Q

Permissive intervention

A

May be allowed whenever:
* Movant has conditional right to intervene under federal statute, or
* Movant’s claim/defense and original action share common question of law or fact

87
Q

Federal Statutory Interpleader: Special Jurisdictional Provisions

A
  • Amount in Controversy: Need only be $500
  • Diversity: Minimal diversity (i.e., when any two claimants are from different states)
  • Service of Process: Authorizes nationwide service of process
  • Venue: Proper in any district where any claimant resides
88
Q

Federal Interpleader Rule: General Rule

A
  • Ps: Persons with claims that may expose P to multiple liability may be joined as Ds and required to interplead claims though they lack common origin or are adverse and independent rather than identical or P denies liability
  • D: Ds exposed to similar liability may seek interpleader through a cross-claim or counterclaim
89
Q

Federal Interpleader Rule: Subject Matter Jurisdiction

A

Court must already have JX over all parties, and for DJ, only stakeholder needs to be diverse from claimants

90
Q

Permissive Claim Joinder: General Rule

A

As between same P and same D, all claims may be joined (need not be related)

91
Q

Permissive Claim Joinder: Subject Matter Jurisdiction

A
  • DJ: P can aggregate all claims against same D to exceed jurisdictional minimum
  • FQJ: If diversity is lacking for additional state-law claims, additional state-law claims can be joined only if they are covered by SJ
92
Q

Counterclaims: Timing

A

Must be asnwered within 21 days of service

93
Q

Compulsory Counterclaims

A
  • A counterclaim is compulsory if it arises out of the same transaction or occurrence as the claim to which it responds.
  • SMJ: By definition court will have SJ so don’t need independent SMJ from original claim
  • Lost if not pleaded in current action
94
Q

Permissive Counterclaim

A
  • Counterclaim that does not arise out of same transaction or occurrence
  • SMJ: Court must have independent DJ or FQJ
95
Q

Cross-claims: Timing

A

Must be answered within 21 days of service

96
Q

Cross-claims

A

Claim against co-party may be asserted if they arise out of same transaction or occurrence that is SM of original action or counterclaim and new parties subject to joinder rules
SMJ: by definition court will have SJ so don’t need independent SMJ from original claim

97
Q

Third-Party Claims (Impleader): General Rule

A
  • D may make a third-party claim against a nonparty for all or part of defending party’s liability for original claim made by P against D
  • BUT, if D is only raising third-party’s conduct as a defense to his own liability by arguing the third-party is solely liable, this is not a proper third-party claim
98
Q

Third-Party Claims (Impleader): Timing

A

Can be asserted any time after complaint is filed, but third-party P must get court permission if filed more than 14 days after service of original answer

99
Q

Third-Party Claims (Impleader): General Rule

A
  • D may make a third-party claim against a nonparty for all or part of defending party’s liability for original claim made by P against D
  • BUT, if D is only raising third-party’s conduct as a defense to his own liability by arguing the third-party is solely liable, this is not a proper third-party claim
100
Q

Third-Party Claims (Impleader): Jurisdiction

A
  • SMJ: By definition court will have SJ so don’t need independent SMJ from original claim. But, If original claim is based only on DJ, claims by P against third-party D must meet DJ or FQ JX requirements on its own
  • PJ: Bulge provision applies
101
Q

Class Actions: Basic Requirements

A
  • Numerosity: Class is so numerous that joinder of all members is impracticable
  • Commonality: Must be questions of law or fact common to class
  • Typicality: Claims/defenses of reps must be typical of class
  • Adequacy Reps must fairly and adequately protect interests of class

Note: Class actions can be maintained in federal court, despite state law barring class actions to enforce statutory damages claims, if action is authorized by Rule 23.

102
Q

Class Actions: Certification Requirements

A

Three situations when class can be certified:
* Risk of prejudice: Either to class opponent or class members
* Final equitable relief: Class shares general claim and injunctive or declaratory relief is sought; a single, indivisible remedy would provide relief to each class member
* Common legal/factual questions: Must predominante over questions affecting individual members

103
Q

Class Actions: Subject Matter Jurisdiction

A
  • FQJ: Applies
  • DJ: Class reps must be diverse from class opponents and at least one P must meet $75k AIC requirement
104
Q

Class Action Fairness Act of 2005

A
  • Allows very large class actions, involving at least 100 members with more than $500 million at stake
  • Only minimal diveristy required (i.e., any P diverse from any D)
105
Q

Class Action: Dismissal, Compromise, Settlement

A

Requires court approval and direct notice to all class members bound by proposed settlement or dismissal

106
Q

Class Actions: Judgment

A

Valid judgment generally binds all members of class except those who opt out

107
Q

Initial Disclosures: Timing

A

Generally within 14 days after parties’ discovery conference

108
Q

Initial Disclosures: Generally

A

Subject to certain exceptions, must disclose:
* Information regarding individuals having discoverable information,
* Documents supporting claims/defenses,
* Computation of damages claimed, or
* Applicable insurance agreement(s)

109
Q

Disclosure of Expert Testimony: Timing

A

At least 90 days before trial or 30 days after disclosre of opposing party’s expert evidence on same subject matter

110
Q

Disclosure of Expert Testimony: Generally

A
  • Names of expert witnesses who will be called at trial
  • Qualifications, publications, opinions, information on which they will base opinions, other cases in which they ahve testified, and compensation
111
Q

Pretrial Disclosures: Timing and Objections

A
  • At least 30 days before trial
  • Objections must be made within 14 days after disclosure, or they are waived unless excused by court for good cause
112
Q

Pretrial Disclosures: Generally

A

Evidence to be presented at trial other than for impeachment, such as:
* Witness list by testimony or deposition
* Documents
* Exhibits

113
Q

Discovery: Duty to Preserve

A
  • Potential litigants have a duty to preserve potentially relevant evidence when litigation is reasonably anticipated/probable
  • Duty includes affirmatively preventing destruction/alteration of evidence
114
Q

Scope of Discovery

A

Generally permitted with regard to any nonprivileged matter relevant to any party’s claim or defense in action, proportional to the needs of the case
* Need not be admissible to be discoverable

115
Q

Work-Product Rule

A

Work product rule protects:
1. Documents and things;
2. Prepared in anticipation of litigation or for trial
3. By or for another party or the party’s representative

Work-product is not discoverable unless party seeking discovery shows:
1. A substantial need for the materials; and
2. That the equivalent information cannot be obtained without undue hardship

116
Q

Discovery: Expert Report

A
  • Testifying expert: Discovery of report always permitted
  • Non-testifying expert: No discovery of report absent exceptional circumstances
117
Q

Discovery Conference

A

Parties must confer at least 21 days before scheduling conference to consider:
* Nature and basis of claims/defenses and possibility of settlement
* Automatic disclosures,
* Preserving discoverable information, and
* Developing discovery plan

118
Q

Oral Deposition

A

Can take place any time after discovery conference and limited 10 per party, unless showing of good cause to court

119
Q

Interrogatories

A
  • 25 written interrogatories per party
  • May only be used against a party
  • Must be fully and separately answered under oath unless timely objected to with specificity, otherwise admitted
  • Responses required within 30 days
120
Q

Request to produce documents

A

Party has 30 days from being served with request or 30 days from parties’ first rule 26(f) conference if the request was served prior to that conference to respond

121
Q

Physical/Mental Examinations

A
  • Court may order person to submit to physical/mental exam if physical/mental condition is in controversy
  • Available only against a party
  • Only for good cause shown
122
Q

Request for Admission

A
  • Party can serve written request for admission of any relevant, nonprivileged matters relating facts of case
  • Failure to respond within 30 days is treated as an admission
123
Q

Subpoena

A
  • Issued from court where action is pending,
  • Used to command a nonparty to take action (e.g., attend a trial, testify)
  • Deposition of a nonparty witness requires a subpoena
124
Q

Discovery Enforcement: Motion to Compel

A
  • Party can move to compel disclosure or discovery against a party failing to make automatic disclosures, or to respond to discovery requests (including evasive or incomplete disclosure)
  • If motion to compel is granted, cost of compelling discovery is often placed on opposing party unless court finds refusal was substantially justified
125
Q

Discovery Enforcement: Sanctions

A

Court can immediately impose sanctions in three instances of complete default:
1. Failure to attend one’s own deposition;
2. Failure to respond to interrogatories; and
3. Failure to respond to a request for documents or things

126
Q

Discovery Enforcement: Electronically Stored Information

A
  • If information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, court may order measures to cure prejudice
  • If party acted with intent to deprive another party of the information, instruct jury that it may or must presume that information was unfavorable to party or dismiss action or enter a default judgment
127
Q

Voluntary Dismissal

A
  • Ordinarily without prejudice
  • P has a right to a voluntary dismissal once at any time prior to D serving an answer or a motion for summary judgment
  • After D has filed an answer or motion for summary judgment, or if P has already voluntarily dismissed once, P must seek leave of court for dismissal without prejudice

Note: If P’s first action was voluntarily dismissed by a state court, then P seeks voluntary dismissal in subsequent federal action, this counts towards the two-dismissal rule. Does not need to be both in federal court.

128
Q

Involuntary Dismissal

A
  • Typically, with prejudice (i.e., an adjudication on the merits)
  • Involuntary dismissal for lack of jurisdiction, improper venue, or failure to join an indespensable party is without prejudice
  • Involuntary dismissal for
  • May be imposed for P’s failure to prosecute or failure to comply with FRCP/court order
129
Q

Summary Judgment: Timing

A
  • May be filed anytime until 30 days after close of all discovery
  • Nonmovant generally must be given sufficient notice to obtain discovery
130
Q

Summary Judgment: Standard

A
  • No genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law;
  • Court will construe all evidence in light most favorable to nonmoving party and resolve all doubts in favor of nonmoving party
131
Q

Summary Judgment: Burden of Proof

A
  • Movant has burden of persuasion to show prima facie case
  • Then, burden shifts to opposing party to set forth specific evidence showing the existence of a genuine issue of fact
132
Q

Right to Jury Trial: Federal Court

A

For state-law claims in diversity actions, federal law will determine whether there is a right to a jury trial

133
Q

Right to Jury Trial: Legal and Equitable Claims

A
  • If case contains a mix of legal and equitable claims, right to trial by jury is evaluated for each claim
  • If action involves legal and equitable claims raise issues of fact common to both, jury must be permitted to determine these issues by trying legal claim first. After, court determines equitable claim, but it is bound by jury’s findings of fact on the legal claim.
134
Q

Jury Demand: Timing

A

Must be served within 14 days after service of last pleading directed to issue that is to be tried by jury

135
Q

Jury Size

A
  • At least six and no more than 12
  • Once selected, a juror must participate in the verdict unless dismissed for good cause
136
Q

Jury Selection

A
  • Court will allow three peremptory challenges (no need to explain/justify) for each party in civil cases, except not for reasons of race or gender
  • Unlimited number of challenges are permitted for cause
137
Q

Jury Instructions: Objections

A

Court must provide an opportunity to object to proposed instructions:
* Objections must be made on the record (preserved) for stated reasons BEFORE jury retires to deliberate
* Only a timely objection preserves issue for appeal

138
Q

Jury Verdicts

A

Unless the parties stipulate otherwise:
* Verdict must be unanimous
* Verdict must be returned by a jury of at least six jurors

139
Q

Juror Misconduct

A

Court may dismiss juror or order new trial if:
* Violating confidentiality of deliberations
* Being improperly influenced by non-jurors
* Investigating facts outside of those presented at trial

Note: Juror may testify about any extraneous prejudicial information/outside influence.

140
Q

Judgment as a Matter of Law

A
  • Standard: Viewing the evidence in the light most favorable to the non-moving party, the evidence cannot support a verdict for that party, and the moving party is therefore entitled to judgment as a matter of law.
  • Timing: Any time before case is submitted to jury
141
Q

Renewed Motion for Judgment as a Matter of Law

A
  • If court does not grant a directed verdict, movant can file a JNOV no later than 28 days after entry of judgment
  • Can be granted only on grounds raised in pre-verdict motion
  • Court may: (i) allow judgment on the verdict; (ii) order a new trial; or (iii) direct the entry of judgment as a matter of law
142
Q

Motion to Amend or Make Additional Findings (Nonjury Trial): Timing

A
  • Must be made within 28 days of entry of judgment
  • May be combined with new trial motion
143
Q

Motion to Alter or Amend a Judgment: Timing

A

Must be made within 28 days of the entry of judgment

144
Q

Motion for a New Trial

A

Must be made no later than 28 days after entry of judgment. May be granted in discretion of court for many reasons, including:
* Legal errors
* Newly discovered evidence
* Prejudicial misconduct by a lawyer, party, juror
* Judge concludes verdict is against weight of evidence

145
Q

Relief from Judgment or Order

A

Court can relieve party of final judgment within a reasonable time, and no later than one year following judgment entry for:
* (i) mistake, inadvertence, surprise, or excusable neglect,
* (ii) newly discovered evidence (not previously discovered through reasonable diligence), or
* (iii) fraud, misrepresentation, or misconduct by opposing party

146
Q

Notice of Appeal: Timing

A

Must be filed with district clerk within 30 days after judgment or order being appealed is entered

147
Q

Final Judgment Rule

A
  • Federal courts of appeals have jurisdiction over appeals of the final judgments of the district courts
  • A final judgment resolves ALL the claims of ALL parties
  • Judgment becomes final when entered by clerk on court’s docket
  • Court may enter partial final judgment
148
Q

Standards of Review: Trial Court’s Factual Findings

A

Clearly erroneous

149
Q

Standards of Review: Legal Rulings

A

De novo

150
Q

Standards of Review: Discretionary Rulings

A

Abuse of discretion

151
Q

Claim Preclusion: Requirements

A

(1) Valid final judgment on the merits
(2) Sufficiently identical claims: Claims are identical if they arise from the same transaction, occurrence, or series
* Consider whether the facts form a convenient trial unit and whether treating the facts as a unit conforms to the parties’ expectations

(3) Sufficiently identical parties
* P and D must be the same, and in same roles.
* Precedecessor and successors in interest can count.

152
Q

Claim Preclusion: Merger

A
  • When a judgment is in a party’s favor, entire claim merges with the judgment and is extinguished.
  • Transactional approach: A subsequent claim w/r/t all or any part of the transaction, or series of connected transactions, out of which original action arose is barred
153
Q

Issue Preclusion: Requirements

A
  1. Same issue
  2. Actually litigated
  3. Final, valid judgment
  4. Essential to judgment
154
Q

Issue Preclusion: Criminal Prosecution

A
  • In Favor of Prosecution: Issue preclusion can apply
  • In Favor of D: No issue preclusion
155
Q

Altering Jury’s Award of Damages

A

Remittur: D’s request to reduce jury award of excessive damages
* P must be offered choice between: reduced damages or new trial on damages

Additur: P’s request to increase jury award of inadequate damages
* Never allowed

156
Q

Judge’s Role Re: General Verdict with Answers

A
  • Answers consistent with verdict: Judge must enter judgment consistent with verdict and answers
  • Answers inconsistent with verdict: Judge must (i) order new trial, (ii) direct jury to further consider its answers and verdict, or (iii) disregard verdict and enter judgment consistent with answers
  • Answers inconsistent with each other and verdict: Judge must (i) order new trial or (ii) direct jury to further consider its answers and verdict
157
Q

Jury Instruction: Requests

A
  • Must file request by close of evidence unless earlier, reasonable deadline set by court
  • May file request after close of evidence when: (i) request relates to issue that party could not have reasonably anticipated by deadline, or (ii) court permits late submission related to any issue
158
Q

Default Judgment

A

Default: When a party has failed to plead or otherwise defend an action (may be set aside for good cause)

Default judgment: Once a default is entered, P may seek default judgment. Default judgment must be entered by the clerk when:
* P’s claim is for a sum certain,
* P’s request for default judgment includes an affidavit establishing the amount due,
* D failed to appear, and
* D is not legally incompetent or a minor

Note: A default judgment is a final judgment for purposes of claim preclusion.

Bar Exam: Outline (15 decks)

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