CivPro MBE Flashcards
What is venue?
Among courts that have SMJDX and PJDX, which specific district court(s) may hear the case?
nature of subject matter JDX for state courts
state courts have SMJDX for any kind of case–pretty much assume. Courts of general JDX
Can you waive or consent to lack of subject matter JDX?
No! only can consent to PJDX, but not SMJDX
What is presumption of fed JDX?
Presume NO federal JDX; burden is on pty seeking
When can objection to SMJDX be raised?
at any stage of proceeding, including appeal. However, if not contested, generally cannot contest judgment collaterally on that basis.
What happens if someone applies for fed JDX but matter is already in state court? General rule and exceptions
Generally, EVEN IF already in state court, fed court with JDX must still hear case. UNLESS:
- resolution by state court would eliminate need for fed court to decide fed issues
- interference with complex state reg scheme or matter of great importance to state
- if fed court is being asked to enjoin punishment for criminal, contempt of court, or civil fine
- parallel proceedings that go beyond waste, when fed policy of unitary adjudication of issue (Col. River WCB vs US)
If fed court does not have JDX, what do they so?
MUST transfer to other fed court that action could have been brought when filed. If transferred, treated as if filed on date on which originally filed.
When does fed court have original JDX?
over all civl actions arising under the C, laws, or treaties of US
When does fed court have concurrent vs exclusive JDX?
Concurrent generaly between state and fed, EXCEPT when Congress says fed has exclusive JDX
Can state courts enforce rights created by federal law?
They sure can! Application to federal court is optional. Dowd Box Co.
If trying to get into fed court and CoA is not expressly or implicitly created by fed law, 4 criteria to get fed JDX over a state law claim?
If fed issue is:
- necessarily raised
- actually disputed
- substantial
- capable of resolution in fed court without disrupting state-fed balance Congress has approved
If a state law incorporates a standard of federal law, is the law state or federal for SMJDX purposes?
State law incorporation of a federal std (say a regulation) does not automatically trigger fed JDX. If no federal remedy in the law, fed court may grant JDx or not depending on whether they think the case is important to decide on fed grounds bc of fed issue or interest
Where in the lawsuit does a federal issue need to be raised to get JDX?
on the face of a well-pled complaint—with “well pled” meaning that the court will consider only the necessary elements of the P’s CoA
What pleadings are not considered for fed JDX?
Defenses, answers, counterclaims
what is a declaratory judgment?
When person anticipates a future problem and asks for a dec judgment to resolve uncertainty and avoid lawsuits. Most states have Stus saying this is OK.
Does FdQ JDX have an amount in controversy requirement?
NO IT SURE DOES NOOOOTTT
4 options (one required) and 1 other requirement for diversity JDX
Options:
a. citizens of different states, but a matter of state law
b. US citizens and citizens or subjects of other nation
AND
amount in controversy MORE THAN 75K
with exceptions!
exceptions to diversity JDX (subject matter of state law)
IF PRIMARILY DISPUTED:
- probate of will, admin of estate
- family law:divorce, alimony, custody
When may suit be brought in US fed or state court against sovereign state?
Generally not except:
- commercial activity by state
- tort in US
- seizing property in violation of intl law
what is the requirement of complete diversity?
No P can be from the same state as any D
OR
if any P AND and D are aliens of same country
exception to complete diversity of citizenship requirement (from fed statute)
if property is claimed by more than 1 person, need only 2 adverse claimants of diverse dicizenship, not complete diversity. FEDERAL INTERPLEADER RULE
class action exception to complete diversity requirement
If class action is more than $5m, any P can be diverse with any D to get JDX
death toll exception to complete diversity
Death toll over 75 at one location, then only need 1 p and 1 D to be diverse IF
1. D resides in one state and substantial part of accident was in another state
2. any 2 Ds reside in different states (regardless of official residency)
3. substantial parts of accident took place in different states
HOWEVER, IF:
substantial majority of Ps and D are in same state AND the laws of that state will decide case. NO fed JDX.
When is diversity determined (like, when people are assessed re: where they are domiciled)
At the time the case is filed. Domicile diversity need NOT exist when action arose.
What happens if, after case gets diversity JDX, the Ds move to same state or the amount in controversy falls below $75K?
Does not change court.
How to determine where domicile?
where present and intends to reside for indefinite period
individual can only have one at a time
What elements show domicile has changed?
- establish presence in new place
- manifest intent to remain there for indefinite period
- maybe: exercises rights like voting, pay taxes, owns property, employed in state
- Does NOT count: compulsory change: incarceration, military; intent to move
What if one party is an alien who does not have citizenship ANYWHERE?
An alien present in US and is not resident of foreign country OR
a US citizen whose domicile is foreign country
=NO diversity JDX
What if permanent resident alien in NJ get sued by citizen of NJ?–for diversity JDX
NO diversity JDX. Also no diversity JDX when 2 foreigners sue each other.
how to determine diversity JDx in class action
if over $5M,
home court advantage rule
It prohibits removal under diversity JDX when a defendant is a citizen of the state where the case was filed.
when can you assert a 12b6 “failure to state a claim on which relief can be based” defense/MTD?
In any pleading, or at trial
When can you assert a defense of no personal JDX?
either in a pre-answer motion or in the answer if it’s your first motion
When can you assert improper venue?
either in a pre-answer motion or in the answer if it’s your first motion
When can you assert insufficient service of process? R4
either in a pre-answer motion or in the answer if it’s your first motion
what is specific in personal JDX
minimum contacts with forum state, plus exercise in JDX would comply with FAIR PLAY AND SUBSTANTIAL JUSTICE
How to get general in personam JDX–person and corp/partnership
- D (individual) is domiciled in state (continuous and systemic contacts, essentially at home in state) OR
- service of process in the state qualifies for general JDX–shows they hang out there knowingly
UNLESS someone is there only to answer legal summons, suit or similar
UNLESS procured by force or fraud - consent, expressly or by participation w/o objection
-appoint agent for receiving process
-
CORPORATIONS or other businesses: general in personam JDX is ONLY where corp is “at home” in the state: incorporation, OR at principal place of bus (nerve center)
What is in rem JDX
brought directly against property to determine all interest in property (like forfeiture, condemensiton)
What is quasi in rem JDX
Brought against person in reference to property:
- type 1: determines parties’ interest in property, like quiet title
- type 2: uses property to satisfy claim unrelated tp property (attachment to collateral, ease garnishment)
What is in personal JDX
- suit brought directly against person
- adjudicates personal liability
- like torts
who can deliver service of process (summons and complaint)?
Anyone over 18 and not a party to the suit
do you have to file proof you served served process?
If service was made in US a not waiver, should file proof of service affidavit. however, fsilreu to file doesn’t not affect validity of service.
3 elements for proper venue
Venue is proper in any federal district where (1) any defendant resides, as long as all defendants reside in the same state, (2) a substantial part of the events occurred or a substantial part of the property at issue is located, or (3) any defendant is subject to the court’s personal jurisdiction (if the first two provisions do not apply).
what must an Answer include to avoid waiving?
- admission or denial for each allegation in complaint
2 .motions that have not bee waied - affirmatie defenses
- compulsory counterclaims
what is present with a failure to state a claim?
request that the court dismiss the suit because the nonmovant’s complaint fails to assert a legally cognizable claim OR fails to allege facts that sufficiently support the claim
supplemental jurisdiction: when can it be exercised over state law claims
A federal court may generally exercise supplemental jurisdiction over claims that fall outside of its original subject-matter jurisdiction when those claims share a common nucleus of operative facts with a claim that falls within its original subject-matter jurisdiction.
name 5 methods for getting info in discovery
depositions
interrogatories
request for production
request for admission
physical/mental exams
how many depositions per party under FRCP?
10 per party
interrogatories –how many and response deadline
written questions served on a party
can serve up to 25 questions
written responses within 30d of service
request for production–how, and limits
- served on a party OR nonparty (need a subpoena if nonparty)
- to produce and allow inspections of docs, e-info, items or land
- no limit to #
- writetn response within 30d of service
requests for admission
requests served on other party to admit truth of facts within scope of discovery
- no limit
- written response due within 30d of service
motion for JML (aka directed verdict)–when can be filed?
after nonmoving party presents case but before case submitted to jury
What must a JML motion show to be granted?
Evidence the other side presented is legally insufficient for reasonable jury to find in their favor
When asked for JML, how must court consider the evidence?
- all reasonable inferences from evidence must be draw in nonmovant’s favor
- disregard evidence favorable to nonmoving that jury need not believe
- not consider credibility of witnesses
- not evaluate the weight of the evidence (NO “evidence is meager and therefore no reason jury could…”)
when is the clearly erroneous standard of review used?
when appealing a bench trial, it’s used to review the trial judge’s finding of fact. Will be reversed if no reasonable just could have made such a finding.
standard of review for appeal from judge’s decision to granted directed verdict (JML)
It’s a purely legal issue and will be reviewed de novo
When may a juror be excused mid-case?
By the judge for good cause (family illness, etc)
What is the minimum number of jurors that must return a verdict?
6 jurors, unless the parties stipulate otherwise
What should an appeal court use to decide whether a judge’s ruling on an evidentiary issue should be overturned?
It’s a discretionary ruling, so “abuse of discretion”–high deference. Only reverse If arbitrary or unreasonable
What is the standard for an appeal of a judge’s decision on legal issues (conclusions of law, jury instructions)
de novo review–no deference (because the court can know all the legal issues, unlike seeing factual testimony and evidence)
What is the standard to overturn a trial court’s judgment of a factual issue? (witness credibility, factual determinations/verdict)
If a fact issue in a bench trial: clear error. High deference, reverse only is no reasonable judge would have done it.
If a jury trial? substantial evidence. High deference, reverse only if no reasonable jury could have made finding
what is collateral estoppel?
Issue preclusion. stops relitigation of an issue that was actually litigated, determined, and essential to valid final judgment on the merits of a previous case. Used to stop a big corp from re-arguing in all subsequent trials that they contribute to climate change when a court already found they did.
Under what circumstances can a plaintiff NOT offensively assert collateral estoppel/issue preclusion?
Cannot assert issue preclusion as a P if:
- P could easily have joined first action
- D had iittle incentive to vigorously defend in first action
- second action affords procedural opportunities unavailable in first action
Steps for settling a class action suit once offer is out
- Court provides reasonable notice of proposal to all class members
- Parties file statement identifying agreements made in connection with proposal
- Hearing & opportunity for members to object or opt out (if it is a “common question” class action)
- Court hold hearing, issues finding that proposal is fair, reasonable & adequate
May class members opt out of a class after they have opted in?
In “common question” class actions, court may give members second opportunity to opt out.
3 types of class actions that a court may certify
- Prejudicial risk – separate actions would create a risk of (1) inconsistent decisions regarding the parties or (2) impairing absent class members’ interests
- Common question – common questions of law or fact predominate over individual questions, and a class action is the best method to fairly and efficiently adjudicate the dispute (as seen here)
- Final equitable relief – injunctive or declaratory relief is appropriate because the opposing party’s actions generally apply to the whole class
Subject matter exceptions to federal diversity jurisdiction
Federal courts cannot exercise diversity jurisdiction over cases involving:
- probate matters (eg, authenticating wills, administering estates)
- domestic relations (eg, issuing divorce, alimony, or child-custody decrees)
what is the 100-mile bulge rule?
Fed Ct may get PJDX over a party who is:
• added through impleader or required joinder and
• Served with process within 100 miles of the federal court where the suit is pending—
even if the party is served in another state.
Where is venue proper when suing a resident of a foreign country?
venue is proper in any judicial district if the D is a resident of a foreign country
where is venue proper for removal to state court?
- Federal district where state action was pending
Where is venue proper for suing a federal official in her official capacity?
- Where D resides
- Where substantial events occurred or property is located
- Where plaintiff resides if no real property is involved in suit
venue for suing a foreign government
- Where substantial events occurred or property is located
- In federal district court of Washington, D.C.
proper venue for multiparty, multiform litigation
- Where defendant resides
- Where substantial part of accident occurred
proper venue for a suit under the Federal Tort Claims Act
- Where plaintiff resides
- Where act/omission occurred
where is venue proper, not counting special rules?
ANY ONE OF THESE:
- RESIDENTS where any defendant resides—but only if all defendants reside in the same state
- INCIDENT/SUBJECT where a substantial portion of the events occurred or a substantial part of the property at issue is located OR
- BACKUP: PJDX. where any defendant is subject to the court’s personal jurisdiction—but only if 1 and 2 don’t work
What is the effect of polling the jury after a verdict is read?
If the poll reveals that the verdict is not unanimous, the court can
either order a new trial OR
direct the jury to deliberate further
how Many jurors must return a verdict for it to be valid?
At least 6
AND
unanimous among whoever is there
What is the effect of polling the jury after a verdict?
If the poll reveals that the verdict is not unanimous, the court can
either order a new trial OR
direct the jury to deliberate further
how many days to enter a RMJML after the verdict?
28 days to file the motion after the entry of judgment
What if the amount in controversy is exactly $75,000
No diversity JDX! need one more dollar.
what changes a person’s domicile?
continues until definitively changed because he/she (1) establishes a physical presence in a new place and (2) manifests an intent to reside there indefinitely.
FCRP requires how many jurors in a civil case?
6-12
what law determines whether a federal court can exercise PJDX over an out of state defendant?
The forum state’s long-arm statute
The federal court of a state can exercise PJDX to the same degree as that state
the federal court of Utah District is governed by the Utah Long Arm law
Can a D’s counterclaim based on federal law invoke federal question JDX?
no. Think of it like a defense, which cannot invoke FedQ JDX
Is a plaintiff’s claim the ONLY thing that bring federal question JDX?
No, other things count.
What is minimal diversity and when is it allowed for diversity JDX?
When at least 1 P is diverse from one D
- interpleader: OK as long as any 2 claimants from diff states
- class actions are than $5m: any P diverse from any D
- torts where at least 75 people dies: any P diverse from any D
Whose state citizenship controls for JDX when estate, minor or incopemetne has a guardian suing on behalf?
the minor, incompetent or decedent, not the guardian
(others, the rep counts)
which members of the class in a class action determine domicile
the named or representative class members only (lots of times you don’t even know the members of a class)
How many citizenships can a corp have?
Several.
State(s) or foreign country(its) where incorporated
Principal place of business: where the nerve center and executive offices are, not the factory
What about when suing a partnership
parnterhisp includes, unions, trade associations, etc.
residents of every state in which they have a members
Can you create or defeat diversity by moving?
Yes, so long as you really moved and have a new domicile
Can you get diversity JDX but assigning your claim to someone in another state?
(like debt collection)
Yes, but ONLY if it is a FULL assignment
partial assignments (like the collector get 50% of debt and the assignor retains 50% interest)
What type of allegation supports exceeding $75K for diversity JDX?
Any good faith claim for seeking more than $75K, even if not recovered
Will only dismiss when it’s a legal certainty they won’t get $75K (like a debt of $50K)
When can you aggregate claims to get over the $75K limit for diversity JDX?
Only works between one set of P and D
Cannot aggregate claims across Ps or Ds
TRICKY: if Ds jointly and severally or jointly liable, then one D for this purpose
When does removal apply?
When a P files a case in state court that could have been in federal
So the D tries to REMOVE it to federal court
no such thing as reverse removal
May a P petition for removal of their case to federal court
no, only the defendants. All must consent to removal
How long does a D have to file for removal?
30d after service of process
all D must agree
If P sues 2 Ds over a diversity claim in Ds’ state, can they remove it to federal court?
No, diversity removal only works if P filed in a state in which no D is a citizen (like P’s state)
this is because the reason we have diversity JDX is to protect Ds against being dragged into another, possibly biased or inconvenient, state
Timing of removal in diversity cases
DIVERSITY ONLY
must be accomplished within 1y of commencement action in state court
this happens because complaints change and might qualify for fed SMJDX after being amended
DIFFERENT: D 30d of service of complaint
Exception: if P acted in bad faith, can remove after one year. Example: if P adds a non diverse D, waits a year and then dismisses that D
If removal is proper, it happens
instantly and automatically as soon of notice of removal is required
What if a state thinks removal was improper?
They petition the federal court for remand and IT decides
another way to say Common Nucleus of Operative Fact
same transaction or occurrence
Can the court abstain from diversity removal?
Can it abstain from Supp JDX?
Yes, it’s up to the court to decide, based on practicality
How to get Supp JDX on diversity claim
. 1. Same T&O as anchor claim
- If Ps are asking for supp JDX, HARD. Almost only not covered: claim of P against single D.
(logic: If person wanting supp JDX for a claim, P chose fed JDX and has to live with its limtied nature. Ds, to be fair to them, were dragged in to fed court)
Ex: does a COUNTERCLAIM in a diversity action have to satisfy a $75K requirement?
Answer: generally no, if counterclaim is compulsory (same T&O). Ecettion: unless compulsory counterclaim is by a P. Rare.
Permissive counterclaim is NOT compulsory, not same T&O. Can be heard by diversity court ONLY if separationsep qualifies for diversity JDX (total diversity, 75K)
Crossclaim: must be same T&O as claim or counterclaim. So this will generally qualify for Supp. JDX UNLESS it is by a P.
does a COUNTERCLAIM in a diversity action have to satisfy a $75K requirement?
A
nswer: generally no, if counterclaim is compulsory (same T&O).
Do crossclaims qualify for Supp JDX?
Depends if it is based on a cross claim by Ds (yes, supp, only Ps get the hard rules)
If the cross claims is the rare crossclaim by P, then no–exceptions.
When can a P get in on Supp JDX even with a claim under $75K
P’s supp claims all against ONE D–then it’s not a D who was joined under the rules.
AND
It arises from the same T&O
BUT
cannot join a non-diverse P OR D
Can Supp JDX destroy diversity?
NO because if they destroy diversity they won’t be allowed to be joined at all
What is the requirement common to ALL Supp JDX claims?
Must arise from the same T&O as the main, original claim
What is a compulsory counterclaim?
A counterclaim is a potential claim in an existing lawsuit that arises out of the same transaction or occurrence as the original claim and that if the D doesn’t bring in this suit, he will lose the right to sue later.
List of rules that join defendants who cannot have supplemental JDX claims added against them
persons made parties under R14,19,20,24 (if meant destroying diversity)
To qualify for supplemental jurisdiction, a __________ must be related to a claim over which the court has subject-matter jurisdiction; and must not be asserted by a __________against a person made party under Rules 14, 19, 20, or 24
cross claim, plaintiff
can personal JDX be waived?
SURE FUCKING CAN
“substantial participation on the merits” waives PJDX objection. This means almost any participation
Often must be waived at first opportunity: at first motion D files (pre-answer MTD or answer, whichever is first)
on a CPRo MEE about PKDX, you always address:
- is PJDX created by statute or rule?
- Is PJDX permitted by the Due Process Clause?
name the 3 types of PJSX
in personam (minimum contacts)
in rem
quasi in rem
how to get in personam JDX
DP requires MINIMUM CONTACTS
with forum state such that it is fair to bring DEFENDANT to court there
must be D’s own purposeful actions that do this
avail self of things in the state
easier to get specific than general
due process requirements for PDJX
There must be minimum contacts between the defendant and the forum state.
P’d purposeful availment of the protection of the forum state’s laws is important
A court’s exercise of personal jurisdiction cannot offend traditional notions of fair play and substantial justice.
what is the Constitutional test for personal jurisidciotn?
the defendant must have sufficient minimum contacts with teh forum such that JDX is fair
what kinds of things are in state long arms statutes?
acts/omissions: inside forum state causing any injury, or anywhere causing an injury in the forum state(Provided D is carrying on some activities here or has introduced goods into commerce expecting they will be sold in state)
Contracts relating to forum state: performing a service there, shipping goods there, paying someone who lives there, claims re: local peroprety
ALMOST EVERYTHING comes within state long arm statute so long as is arises from minimum contacts within the state. State long arm tends to permit JDX to max of constitution
Exceptions to fed ct to following state long arm statute
Fed Interpleader Act: service of process anywhere in US can establish JDX in ANY fed court
Bulge provision: process is fine anywhere within 100m of that court, treated as if in state. SO LONG AS impleading Ds and joining necessary parties
What if FedQ but D is not a citizen of ANY state
Fed court can assert over D so long as they have min contacts with US as a whole
(relevant JDX is the entire US)
RARE. foreign Ds
in rem JDx is…
Suit against a THING (res), must be located within the state
“in re: house a 2830 Desert Rd”
can bring suit against property to settle ALL claims in one case re: that prooperty
can be real, property, land (like quiet Tiel), bank account
quasi in rem is…
subject to same min contacts test: rarely used, should not show on bar
apply same test!!! for in personam.
Property is a kind of contact w/ forum state:
- specific JDX is case is about that property
- general JDX: HARD. downing property in a state does not make them at home there
When can a federal court assert broader PJDX than the state long arm statute? examples
Nationwide service of process under the Federal Interpleader Act
The unusual situation in which the defendant is not subject to personal jurisdiction in any state court (like a foreign resident)
Service within 100 miles of the federal courthouse when joining a necessary party under Rule 19
in rem JDX is…
adjudicate the rights of all parties to the property that is the subject of the action
exists over real or personal property located in the forum state.
What allows a court broader JDX than allowed by a state long arm statute?
Nationwide service of process under the Federal Interpleader Act
The unusual situation in which the defendant is not subject to personal jurisdiction in any state court (like a foreign resident)
Service within 100 miles of the federal courthouse when joining a necessary party under Rule 19
An act or omission outside the state causing injury to a person or property here or elsewhere–can it be used for specific personal JDX?
NO
what rules does a federal court follow for service of process?
either the host state or the federal rules
federal rules for service of process
- personal delivery
- D’s dwelling (NOT office), w/ person of suitable age/discretion
- authorized agent, if exists (mostly for businesses)
- Foreign countries: registered mail, return receipt requested
mail to atty of record is NOT ok for service of process unless state law says
(though other stuff can be delivered that way)
special rules for service!!!
special service rules
infant or incompetent: D AND guardian
out of state for traffic accidents: states deem the local state official as agent
partnership: a
in rem case: try all claimants to property. publication; BUT CANNOT rely on publication
how to waive service by mail
request by mail: provide service, if waives: 60d to respond (90d if outside US)
if does not waive: D must cover cost of formal service and has 21d to respond
requirement for TRO
Immediate and irreparable harm if they mist wait
atty must show they have tried to notify other side
generally TRO can’t be appealed unless been extended a lot
bases for PJDX:
- serive of process in person
- domcile
- consent
when do federal courts have nationwide JDX?
statutory interpleader
(expanded but not nationwide with bulge)
Legit ways to deliver service
- personal
- dwelling w/ suitable age and discretion
- appointed agent
can venue be waived?
SURE CAN. failure to make timely objection can be waived
must be raised at first opportunity, like PJDX
where is “residence” for business entities for venue?
anywhere PJDX exists
how does venue work with removal?
Of venue is proper in a particular state court, it is fine in the fed court where that state court sits. So if you filed properly in CA court in Modesto, then whatever Fed Dist Modetsto was in is now the right fed court (even if it would not have been right otherwise)
UNLESS everyone consents
What is substantive law for purposes of Erie doctrine (meaning court will follow state law)
- behavior, obvious stuff
- statutes of limitations (state)
- burdens of proof
- choice [ste v fed] of law rules (contain home state bias) so where you start matters!
anything covered by FRCP counts as _____ for Erie purposes
PROCEDURE!
with some exceptions
are previous federal court decisions on state law persuasive on a current state law case in federal court?
NOPE. think of like in yoga, regrounding to the source. don’t believe your thoughts, go back to the original
3 categories of pleadings
complaint (claim)
answer (to complaint)
reply (to counterclaim)
what must a complaint contain?
short and plain statement of:
complaint (enough give fair notice of claim) showing P is entitled to relief (some things must be specific specially pled)
jurisdiction and venue
request for relief
what 2 things require special pleading?
- fraud must be explained in some detail
- special damages (not standard with this type of claim)
What do Twombly and Iqbal say?
- complaint must state plausible case for recovery
- conclusory claims ignored; only consider claims of fact. Do they create a “plausible” case that the claim is true? no “defendants conspired”
CURTAIL NOTICE PLEADING before discovery
for bar exam: implausible claims without facts may be dismissed
When deciding a motion to dismiss for failure to state a claim, the court engages in a two-step inquiry: (1) identify allegations that are ____________________, and (2) ask whether remaining allegations make a ______________________ case for recovery.
conclusory, plausible
what is a motion?
a request for a court order
3 MTD motions
- 12b6
- no join necessary party
- forum non coveniens
when might a court grant a motion for judgment on the pleadings?
When all pleading have been submitted and they agree on the facts, but the only issue is the law. Then a court can issue a MJPl–because no Q of fact to try.
when is a motion to strike appropriate
when a scandalous or prejudicial comment is irrelevant to the matter at hand
OR
defense that are not relevant to the law
what should be in an answer?
- repsond to each allegations (or it’s an admission)
- raise affirmative defenses
- counterclaims
hw long to serve an answer?
21d normally
60d is service is waived
90d if service waived and D out of country
how long to file an answer from time MTD is denied?
14d
what is a reply in pleadings?
P’s answer to a counterclaim
when may an amendment to a pleading may be done by right?
within 21d of service of that pleading OR
21d of other party’s response to the pleading you want to amend OR
by leave of judge, to be freely given unless good reason
when does an amendment to a pleading “relate back” to allow it to get within the statute of limitations?
amendment relates back to original filing date IF
amendment conners the same T&O as original pleading
key: did original pleading give party notice? or will this surprise with something new?
When can you add a new party via an amendment to a pleading and still get in under the SoL?
If it qualifies for relation back AND
if D knew that but for an error, he would be sued over this incident
(common with companies with parent and subsidiary companies)
someyies you just can’t add an amendment if it doesn’t relate back
what does attys’ signature on a pleading mean?
to best of atty’s knowledge, after reasonable inquiry,
no improper purpose (delay, harassment, etc.)
warranted by law or reas argument to change law
fact allegations have evidentiary support (or are likely to after discovery)
factual denials are supported OR supported by lack of info
how to sue a minor
thru a guardian
how to sue a partnership
- fedQ: single party
- diversity: each partner’s citizenship must be counted
to to get party in through permissive joinder
if suing them comes through same T&O (or series) AND
at least one Q of law or fact
all joinder rules ASSUME that there is_______ for the case
subject matter JDX. If no JDx, no joining.
Claims by Ps against person made party under R20, are NOT Supp JDX so
each must be more than $75K
However multiple Ps can aggregate claims against 1 D
What is R19 compulsory joinder?
A new party is necessary for a just adjudication
AND
it is feasible to add them to the case (not destroy diversity, court can exercise PJDX (this is where the Bulge Rule comes in–for necessary party))
AND
if cannot be joined, can the case go ahead without them? or dismiss?
R24 intervention as of right happens when…
person has interest in lawsuit AND
their interest in the matter may be compromised if no present in suit
R 24 permissive intervention happens when…
court gives permission AND
any common Q of law or fact
must be timely, but no fixed rule
interpleader
when multiple people have competing claims to a property “the stake”
“stake” can be any kind of property
resolve all of claims to property in one action
if stakeholder claims right to keep property, can become an claimant
can invoke interpleader as P or D, then all other claimants joined as other side.
what is Rule Interpleader
R22 of FRCP. remedy available in lawsuit already in court
not important in bar exam
often doesn’t;t work because court can’t get JDX on allpartie
statutory interpleader
This is from R22: open fed courts to interpelder
special rules for SMJDX: act in controversy, must only be $500 (was $75K)
SMJDX satisfied so long as minimal. not complete JDX amount Ps
what does the interlesder act sithrizer re” PJDX
nation eider service of process
where is venue proper under federal interpleader act?
any district where any claimant resides
(the point of interpleader is to bring all the Ds)
how about SMJDX for interpleader in fed court?
$500 AIC
minimal diversity (any 2 claimants from diff states)
Can a person intervene in a suit with supplement JDX when the case is based on diversity JDX?
no
when adding a party under joinder, you must always make sure the court has _____
jurisdiction –both personal and SMJDX
do you need same T&O for supp JDX between same P&D?
no, they’re in court against each other already, let them go nuts
what makes a counterclaim compulsory?
if it arises out of the same T&O as the original claim
Supp JDX is generally available for these
(if raised by D, doesn’t fall into exceptions to supp JDX)
amount in controversy doesn’tmatter
SoLs not a problem for compulsory counterclaims–they piggyback on original claim’s filing date
must be raised now or lost forever.
permissive counterclaim different from compulsory
must go over $ amount to get in
Does not get breaks on SoL–date counterclaim is filed
does a crossclaim get Supp JDX?
Sometimes.
If part of same case or controversy AND
is by a D
If by a P to another P–no. Exceptions to Supp JDX.
are crossclaims ever compulsory?
no because we don’t want to for Ps to sue each other–might not be able to work together
what is impleader?
Where D brings another D in because he is also responsible for harm
not “I’m innocent and he did it”–“he’s liable to me for this”
(technically P can use it defending a counterclaim)
Ker hires Subs for building. K provides that Sub indemnifies Ker for defects in Sub’s work. Sub is liable for Ker under the contract. Homeowner sues K-er. K-er impleads…
the Sub
Gen K-er is in charge of building. Sub does something negligent w/ electrical wiring. Both are responsible, but P sues only K-er. Then…
K-er can bring Sub in via impleader, because Sub may be liable to D (K-er) if he loses.
Indemnity! and 2 Torfeasors!
If 3P D is brought in through R14 (impleder). can the P bring a claim against him?
Not under Supp JDX (because of exceptions)
Only if amount in controversy is over $75K and would not ruin diversity???
What are the limits on joinder of claims between the same single P and D
You can join all claims so long as jurisdiction applies
describe a compulsory counterclaim
- arises from same T&O between same parties as main claim
- gets in under Supp JDX
- SoL tolled by original complaint!!!!
when does a cross claim (across Ds or Ps) get Supp JDX?
Same T&O (all crossclaims must)
Must be claim by a DEFENDANT
If P wants to assert crossclaim against P: ONLY if qualifies for JDX on their own
are cross claims ever compulsory?
No. Compulsory rules don’t apply to crossclaims. Only counterclaims
comes up on bar! Indemnifciation K:
Ker hires subK, who indemnifies Ker for defects in work
Homeowner sues Ker, who then brings Sub into case
THIS IS AN IMPLEADER Q
Bar Q: Ker and subs don’t have a K but wiring hurts someone
Ker and Sub are joint tortfeasors
But P only sues Ker. But Ker can pull sub into case
2 tortfeasors injure same P, P sues only one
D has a right to seek contribution from other tortfeasor
Can use impleader
What does D need to bring in party through impleader?
Supp JDX works because a D is bringing in and its the same T&O
P can only bring claim directly against impleaded person
IF the claim would have JDX on their own (diverse and 75K)
[this is to stop Ps from only suing one person to get around complete diversity or amount in controversy requirements)
4 prefers for class actions
- NUMEROSITY (too big to join all Ps normally)
- Common Qs of law or fact
- Typicality of reps of the class
- Adequacy of representation (enough ppl in suit to rep class)
Special requirement for settlement, dismissal or etc. of class action
judicial approval
(because absent class members need to have someone look out for them)
How to get a class action into fed court
At least 1 P gets $75K+
Named plaintiffs must be diverse from D
When do BIG class actions get in fed court?
minimal diversity
total amount at issue more than $5m
what is minimal diversity?
1P diverse from 1d
can a person be imploded without personal JDX over the D?
NO, but the bulge provision helps
what are mandatory disclosures?
not tested in detail on bar, most states don’t follow
names/address of possible witnesses, discoverable info
insurance agreement
copies/descriptions of relevant docs
computations of damages
LATER:
names and qualifications, info, other cases, composition of expert witnesses
30d before trial: witnesses and exhibits
wtf does “proportional” requirement mean re: court limits on discovery
can’t be unfair or unduly burdensome
court will balance
work product privilege
doc or things! not the info underlying it. that can be discovered w other means
must be prepared by or for another party, or their representative (accountant, atty)
prepared in anticipation of litigaiotn or for trial
how to overcome work product immunity
- real need for info
- REALLY hard (not just inconcentient or expensive) to get another way
difference in discoverability between expert-witnesses and non witness
• expert witness: ALWAYS discover their report on case, compensation,
but NOT comms between expert and L, or draft copies
• expert NOT witness: work almost never discoverable
when can the court issue a “protective order” re: discovery
lots of power to limit duisoveruy: Long, burdensome, etc.
What can the other side get in discover about a testifying expert?
A party can discover the amount of compensation given to the expert, and the underlying facts, data, and assumptions provided to the expert by the lawyer.
how many depositions (unless court allows more)
10 depos, 7 hours one day each
how to depose anyone not a party
subpoena, served personally
to get her to bring stuff, subpoena deuces tecum
interrogatories
list of Qs
can respond just by deliver database and make them find it (so long as you’d have to do the same)
request to produce and permit inspection
ask to inspect documents and land
under control of a PARTY (witness needs subpoena)
describe with particularity
response due in 30d
pays/mental exam
- must be at issue in the case
- only against a party
- show good cause
requests for admission
failure to respond within 30d counts as an admission
must be signed by atty certifying reas basis and good faith (R11)
unlimited #
pretty much just to streamline: things they already know
when can a deposition be used at trial?
-always if it’s the opposing party
-if a mere witness, as impeachment w/ inconsistent statement
OR
witness is out of subpoena power OR over 100m away
What is considered enforcement default on discovery requests?
failure to:
-show up at your deposition
-respond to your interrogatories OR
-respond to req for docs or other things
then get sanctions (short of contempt)
when can you get an order compelling discovery?
- person is just obstructionist or super unhelpful in their answers or other responses to discovery instruments
what happens if discoverable info is intentionally destroyed?
judge instructs jury that info should be considered bad for other side
OR
can throw case out
effects of involuntary dismissal of a case
usually with prejudice, UNLESS for:
-lack of JDX, venue, necessary party
why involuntary dismissal
didn’t show up or try to prosecute case -PLAINTIFF
other stuff
difference between 12b6 MTD and R56 SJ motion
12b6 asks about legal sifficunceny –no fact judgmetns
SJ motion asks to rule on both facts and law
what is a 12b6 saying
failure to state a claim upon which relief can be based
what is R56 SJ motions saying
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law
what does it meant that there is no genuine dispute over a material fact
that no reasonable jury could find for the other side
(at least on the specific issue the motion concerns)
limits on evidence you can use to fight a R56 motion
sworn statements only–generally admissible evidence
because we want to judge based on what jury would see
what issues do not have right to jury trial
- equitable purely: injunctions, specific performance ($ damages gets a jury because damehges are a remedy at law)
- admiralty
- if equity and legal issues overlap in one suit, like $ is only in a counterclaim, then try the legal ($) issues first)
when must demand jury trial
made by either party
in pleading or separately
no later than 14d after service of last pleading directed to issue on which jury trial is sought (so if it’s in complaint, 14d after service of the ANSWER)
how to preserve objection to jury instruction
judge must let you review
you must object timely before instructions given
when can a jury have a nonunamious verdict?
how about less than 6 jurors returning verdict?
if parties have agreed
R50 JML or directed verdict–grounds
jury could not have any reasonable disagreement on verdict
so NOT a judgment as to credibility of witness or whose case is stronger
Timing for JML
D: close of P’s case
close of evidence: either side
RMJML timing
after the verdict is returned
ONLY IF you did a JML
difference between appealing a JML and a RMJML
If appeal a JML and appeals court disagrees, have to do whole trial over again
If appeal a RMJML, the appeals court can reinstate jury verdict
motion for a new trial: difference from JML
JML/RMJML requires that no reason jury could decide other wauy
new trial just requires “sound discretion of court”–because not taking this away from a jury, so fewer 7A issues.
things like: judge error, prejudicial misconduct, new evidence, juror issues, OR
verdict “against the great weight of evidence” on substantive or damages act
so does kind of allow judge to act like a juror and decide fact issue}
review only for abuse of discretion
std of review for order of new trial
review only for abuse of discretion
what is appeal based on?
the final judgment of the trial–when clerk enters it on docket.
partial final judgment can be immediately appeal IF court designsates it a final judgment
(unless interlocutory, narrow)
how long to file appeal
30d from entry of final judgment
UNLESS you filed RMJML or motion for new trial–
the 30d clock starts when judge rules on them
what can be appealed before final judgment?
- BY RIGHT: injunction (or its modification)
order affecting possession o property - any interlocutory order can be appealed if both trial and appeals court give ok
- certification of class action
- [coltaeral orders: separate from and Coll to main suit AND deal with important issue that can’t effectively be appealed from final judgment] Ex: denial of MTD for forum non conveniens]
- writ of mandamus SBUSE OF AUTHORITY. like that judge in Chicago 7
grounds for court approving interlcoturoy appeal
• trial court must certify that it’s appealable:
controlling issue of law for which substantial grounds for diff of opinion, and hearing it will help bring better or more authoritative close to litigation
• appeals court must agree to hear it
collateral order doctrine
appeal
When can a court NOT give full faith and credit to another court’s decision
- child custody: can alter because new circumstances
- when 2nd court doubts the JDX (sm or personal) of first court
do federal courts need to give full faith and credit to state court judgments?
Yep. presumably by the same rules as state to state?
do federal courts need to give full faith and credit to state court judgments?
Yep. presumably by the same rules as state to state?
what is claim preclusion?
Final judgment on merits precludes that same claim being re-tried by same parties or successors in interest.
Applies to every claim that WAS or SHOULD HAVE been raised **1. Final judgment on merits:** default J, SJ, dismissal with prejudice, and verdict **2. Same P AND D** or successors in interest (includes class action, all members) unless they opt out--they are not bound by judgment **2. Same claim** or one that should have been raised in the previous case (does NOT count if a civil litigation comes after criminal--like the OJ trial!) Same claim includes all theories for same T&O cannot re-bring case because it was a K and now its a tort
What counts as one claim for claim preclusion?
Anything that arises from same T&O
including claims that could and should have been brought at previous suiit
(T is behind on 3 months’ rent. LL sues for one month. Then cannot sue again later for months 2 and 3.)
Weird: installment Ks: often whole amount becomes due on default. must se for all debt then
Issue preclusion
- Same issue of fact (claim can be different) with same legal issues
- Actually litigated and essential to decision in previous suit (no default judgment)
- Party to be precluded from re-litigating issue must be in previous suit (can’t assert against issue preclusion against a different D)
In trial one, Ford was found to be negligent in its brake design.
A new P sues Ford re: an accident. Can P preclude Ford from re-arguing that their brakes were not negligent?
Yes. This is issue preclusion. The issue of negligent brake design was already litigated.
What if the first case found Ford NOT negligent in brake design, but a second P wants another go at it. Can Ford assert issue preclusion against the new P?
NO. because this P was not in the previous case, and he gets his day in court.
4 requirements for preliminary injunction
A federal court may grant a preliminary injunction when
(1) likely to succeed on the merits,
(2) likely to suffer irreparable (not compensable by $ damages) harm in the absence of relief,
(3) the balance of equities is in the movant’s favor, and
(4) the injunction is in the best interests of the public.
define interrogatories
questions served on another PARTY (not mere witness)
LImit: 25
30d to respond
may inquire about any matter within scope of discovery
Ann sues her employer in another state over a federal law question. She then seeks to add a separate claim regarding a car accident against her employer, with $5,000 in damages. Can she?
No. Because while the joinder is appropriate, the court must still have JDX over teh new claim. It’s not a federal question. Supplemental jurisdiction is not available because the new claim is not the same T&O. Diversity is not available because the amount in controversy is too low.
how long to demand a jury trial
serving demand no later than 14d after the last pleading directed to that issue is served (here, the funeral home’s answer) and
filing the jury trial demand with the court within a reasonable time after service of the demand.
what does due process require for notice re: a legal action?
due process requires that service reasonably apprise the defendant of the pending suit so that the defendant may appear and present objections.
P must notify D of the lawsuit by the most reasonable means under the circumstances.
This is NOT waived by state rules on service
This includes government actions to do eminent domain
when DOES a deposition require court permission or party stipulation?
(1) the deposition exceeds the 10-deposition limit,
(2) the deposition is sought before the initial planning conference, or
(3) the deponent was already deposed in the case.
can someone appeal a decision to set aside a jury verdict?
No because a set aside jury verdict is NOT a final judgment.
With exceptions, an appeals court can only hear an appeal to a final judgment. An order for a new trial after a jury verdict is NOT a final judgment because the judgment will be set aside to made way for a new trial on the merits.
when can you appeal something that is not a final judgment?
In Certain Circumsntanes, An Appeal Can Be Made Prematurely
Injunction
Certification by Dist Court
Class Action Certifiastion
Appt of Receiver
Admiralty
Collateral Order Doctrine
Banktruptcy (certain orders)
Mandamus
Patent infringement (accounting left)
must a federal district court follow a ruling by the state’s highest court when interpreting state law?
Yep, even if new riling came out after case was filed
how long to respond to an amended pleading?
Unless the court orders otherwise,
within (1) the time that remains to respond to the original pleading or
(2) 14 days after service of the amended pleading—whichever occurs later.
(so unless the judge wants to be a dick you have at least 14d, maybe a bit more)
when to object to a jury instruction
A jury-instruction error is preserved for appeal when a party timely objects to the instruction on the record and states the grounds for the objection. An objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request has been refused.
What if I’n being sued and I describe a document that my supplier has that’s important to my testimony? Do I need to get it from him and present it?
parties are generally required to make initial disclosures of basic information about the case without a discovery request. This includes, among other things, all documents and items that the disclosing party possesses and may use to support a claim or defense. If the party does not possess it, then the other party can use subpoena power to get it,
What if there is a clerical error in the records from a jury trial, but the verdict has been appealed?
An error can only be corrected by the court currently handling the case (district or appeals, etc.) unless the district gets permission from the appeals.
A district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record. The court may do so on its own initiative (i.e., sua sponte) or pursuant to a party’s motion before an appeal from the judgment or order is docketed. But after an appeal is docketed, the district court can correct the mistake only with the appellate court’s leave (i.e., permission).
When and why can someone seek “extraordinary relief” from a final judgment, past the appeal period?
In limited circumstances. Must be made in one year from entry of final judgment when:
• judgment was due to mistake, inadvertence, surprise, or excusable neglect by the nonmovant or the court.
• discovered new evidence that could not have been discovered with reasonable diligence in time to move for a new trial—i.e., within 28 days of the final judgment.
• nonmovant engaged in misrepresentation, misconduct, or fraud.
Must be made within reasonable time if the judgment lacked JDX, or was satisfied/released/discharged; based on reversed or vacated judgment; or will violate equity if applied prospectively
What if a D denies the grounds for a suit in his answer, but does not address teh damages?
That’s fine. While a D must deny allegations or they are deemed admitted, this does not count for the amount of damages, which D need not deny.
What happens in diversity JDX when we aren’t sure if state or federal law should control because we are not sure if it’s substantive or procedural? Like SoL
Under Erie, state law applies if (1) it is outcome determinative—i.e., forum-shopping or inequitable administration of the laws would result if it is not applied—and (2) there is no countervailing federal policy interest.
So if SoL under state would lead to a different outcome than applying fed law, and there is no fed policy interest, state law applies.
is evidentiary privilege decided under state or federal law in diversity JDX?
State law! because it is considered substantive. So a fede court will follow it.
what happens to a person who no-shows at a court-ordered PTC?
, a district court may impose sanctions that are reasonable under the circumstances—i.e., the punishment must fit the violation—on any party or attorney who:
- failed to attend a pretrial conference
- did not participate in good faith, or was substantially unprepared to participate, in the conference or
- failed to obey a pretrial order.
what is the effect of an involuntary dismissal?
An involuntary dismissal under FRCP 41 operates as an adjudication on the merits unless the court orders otherwise. This means that the plaintiff’s action is dismissed with prejudice, which precludes the plaintiff from suing the defendant on the same claim in the future (Choice D). Therefore, the plaintiff here is not entitled to pursue a new action based on the same claim in federal court because the dismissal was proper after he failed to prosecute his case.
of chances to strike juror
During jury selection, each party is entitled to (1) three peremptory challenges to strike potential jurors for any reason (other than race, ethnicity, gender) without an explanation and (2) an unlimited number of challenges for cause to strike potential jurors for bias or lack of impartiality.
When a civil action involves multiple plaintiffs or defendants, the court may grant each side (1) three peremptory challenges or (2) more than three peremptory challenges that each side’s parties exercise separately or jointly.
must a p admit/deny allegations in the D’sa answer?
A plaintiff need only respond to the defendant’s answerby filing a reply in the rare instance that the court orders the plaintiff to do so.
If the court orders a reply, the plaintiff may be ordered to respond to any allegation in the answer—including an affirmative defense (e.g., novation). Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff. But when a reply is not required (as seen here), then the plaintiff is deemed to deny any allegation in the defendant’s answer
Can a P assert a claim against a third-party D that was brought in through impleader?
P may sue 3P D brought in thru impleader IF:
(1) same T&O as original P→D AND
2. new claim satisfies SMJDX
3 ways of serving with a complaint to US defendant
- following the rules of the state where the court sits or where service is made
- having process delivered to the defendant personally (or to an agent authorized to receive process) or
- having process delivered to the defendant’s dwelling and left with a resident of suitable age and discretion—i.e., old enough to possess the limited capacity necessary to comprehend the situation.
How to appeal if you’ve been denied certificate of a class
- petition A. court within 14d of order entry
- appellate court has discretion on whether to permit appeal
Do you need approval of court to appeal a preliminary injunction?
NOPE
How to get PJDX by just phoning a D and telling him to show up, if he does
Personal jurisdiction can be established through the defendant’s express consent, implied consent, waiver, or appearance—i.e., by voluntarily appearing in court to litigate the merits of the case.
In diversity JDX, what does a court do when it’s not clear whether applicable state and federal laws are substantive or procedural?
- is there a conflict between state and fed? if not, court may apply both
- if they don’t match, does a fed law directly address the issue? fed law here is the C, statutes, rules, NOT fed common law.
- ERIE: state law applies if
- applying the state law would determines the outcome, which means
- fed law would get better result for Ps (discourage forum shopping to get into fed court for better result)
- applying a diff fed law would result in unfair outcome
- AND there is NO countervailing federal interest
- applying the state law would determines the outcome, which means
*** A court must then determine if a federal law directly addresses the issue. Federal law encompasses federal constitutional provisions, statutes, and rules—but not federal common law.
In such a case, the Erie analysis must be used to decide if a federal court should supplant state law with federal common law. Under this analysis, the issue will be considered substantive and state law will therefore apply if it is outcome determinative AND there is no countervailing federal interest. State law is outcome determinative if the failure to apply state law would result in either:
forum-shopping – litigants will be encouraged to sue in federal court to take advantage of benefits not afforded in state court or
inequitable administration of the laws – the application of substantially different rules in federal and state court would cause unfair outcomes.
rules for P’s permissive joinder of claims against multiple Ds
Under the permissive joinder rule (FRCP 20), multiple persons may be joined as plaintiffs or defendants in the same suit if:
-arise out of the same transaction, occurrence, or series of transactions or occurrences AAANNNNDDDD
the action will involve a common question of law or fact among all joined parties.
when are parties NOT required to be joined under R19
When a P could separately sue them without
(1) preventing the court from granting him complete relief,
(2) prejudicing the absent party’s interest, or
(3) subjecting the parties to multiple or inconsistent obligations.
is the avialblity of assumption of risk as a defense a substantive or procedural issue?
more likely, though not certainly, procedural
Although the elements of a defense are substantive and thus controlled by the law of the state in which the district court is located in a diversity action, the availability of a defense is arguably procedural.
