CP - FED CIV PRO

Question 1

PERSONAL JURISDICTION OVERVIEW

Answer 1

Personal jurisdiction (“PJ”) involves the court’s ability to exercise authority over parties or their property

• Core concept is fairness - i.e., is it fair for this court to exercise jx over this D?
  
  • Must balance states’ interest in protecting their citizens with individual due process rights
• Statutory and constitutional constraints can limit court’s jx

Analysis - jx must be statutorily authorized and constitutional

• Statutory - an applicable state law must authorize jx
  
  • Usually a long-arm statute will apply (see card 3)
• Constitutional - jx must satisfy due process
  
  • Minimum contacts - parties must have minimum contacts with forum state
  • Adequate notice - parties must receive adequate notice of the action » See cards 4-7

Question 2

TYPES OF PERSONAL JURISDICTION

Answer 2

In personam - jx over persons

• Court may render judgment (money or injunction) against an individual based on contacts with the forum state
• Note - type of jx most likely to be tested on MBE
• See cards 3-7

In rem - jx over property or status, including ownership disputes

• Court adjudicates rights of parties with respect to property located in forum state
  
  • Judgment is binding as to disposition of property rights or status, not as to parties personally
• Often involves estate issues, business proceedings, property disputes (e.g., action to quiet title, dissolve marriage, etc.)

Quasi in rem - permits a court without PJ to determine certain types of disputes between a P and D regarding property when property is located in the forum state

• Property is attached for some reason not necessarily involving property itself - e.g., action against D and his assets due to fears D will flee state
• Court may render judgment as to persons with respect to property (rather than judgment over person or property itself)

Question 3

STATUTORY LIMITATIONS ON PERSONAL JURISDICTION

Answer 3

State laws often determine when courts may exercise jx

• A fed. court must analyze jx as would a state court in which it sits and must follow applicable state statutes
• Note - court’s exercise of jx must also satisfy constitutional requirements (see cards 4-7)

Most state statutes grant courts in personam jx if:

• a) Service of process - D is personally served in forum state » Duration of D’s presence irrelevant
• b) Domicile - D is domiciled in the forum state
  
  • Domicile = D maintains permanent home in forum state
  • Court can exercise jx over domiciled persons even if they are not physically present when served
• c) Consent - D consents to jx (can be express or implied)
• d) Long-arm - D’s acts fall within state’s long-arm statute
  
  • Most common
  • General/Unlimited long-arm statute - confers state’s courts with jx to the extent allowed by Const.
  • Limited/enumerated long-arm statute - specifies when state courts can exercise jx

Question 4

CONSTITUTIONAL LIMITATIONS ON PERSONAL JURISDICTION

Answer 4

To be subject to PJ, D must have such minimum contacts with the forum state that exercising jx does not offend traditional notions of fair play and substantial justice

Analysis - minimum contacts, foreseeability, fairness:

• Minimum contacts (see card 5) - D must have sufficient minimum contacts with forum state; inquiry focuses on:
  
  • Purposeful availment - did D avail herself of forum state’s laws?
  • Foreseeability - did D know or anticipate being held accountable for her in-forum activities?
• Fair play & substantial justice (see card 6) - given D’s contacts, exercise of jx must not offend these notions; inquiry focuses on:
  
  • Relatedness - are D’s contacts related to the claim in the present action?
  • Convenience - would litigating in the forum severely disadvantage D?
  • State’s interest - does forum state have an interest in providing redress for residents or an interest in the outcome?
• Notice - separate constitutional requirement (see card 7)

Question 5

MINIMUM CONTACTS

Answer 5

What constitutes minimum contacts?

1. Purposefull availment - D must purposefully avail herself of forum state’s laws, i.e., reach out in a non-accidental manner
   
   • E.g., using roads, doing business in-state, etc.
2. Foreseeability - D must know or reasonably anticipate that she could be held accountable for her activities in the forum state

Circumstances that give rise to sufficient contacts - Domicile, consent, or presence in forum state (see definitions on card 3)

Circumstances that may give rise to sufficient contacts:

• Website - interactive sites will be more likely to give rise to minimum contacts; passive sites less likely
  
  • Interactive - two-way communication between user and operator (e.g., information exchanged for the purpose of soliciting business; purchases allowed)
  • Passive - site makes information available to interested viewers, but no business is transacted
• Putting goods into stream of commerce - manufacturers may be held liable if they could reasonably expect consumers to purchase their products in forum state
  
  • But mere awareness that component parts may reach forum as part of another product may be insufficient

Question 6

FAIRNESS FACTORS FOR MINIMUM CONTACTS &

GENERAL VS. SPECIFIC JURISDICTION

Answer 6

Due process requires that the exercise of jx must be fair (i.e., must not offend traditional notions of fair play and substantial justice); usually arises in the context of PJ over businesses

Factors - look at three factors in determining if jx is fair: (1) relatedness, (2) convenience, and (3) interest of forum state

1. Relatedness of contacts & claim - does P’s claim arise from D’s contacts with the forum state?
   
   • Specific jx - claims arise from D’s in-state contacts
     
     • Only minimum contacts must be established
     • D can only be sued for claims arising from in-state contacts
   • General jx - claims do not arise from D’s in-state contacts
     
     • D has such systematic and continuous contacts that it is essentially “at home” in the forum state
       
       • D generally “at home” if it is incorporated or has principal place of business in forum state
     • If found, D can be sued for any claim arising in or outside of forum
2. Convenience - would jx in forum severely disadvantage D?
   
   • Must be so inconvenient and difficult that D is inherently put at severe disadvantage compared to P
3. State’s interest - does forum state have an interest in providing redress for its residents, or an interest in the outcome of the case7

Question 7

NOTICE REQUIREMENTS

Answer 7

Due process requires that D must be sufficiently notified of a pending lawsuit

Requirement - notice must be reasonably calculated under the circumstances to apprise interested parties of the pendency of the action and afford an opportunity to be heard

Methods of notice

• Traditional methods of notice satisfy due process
  
  • E.g., personal delivery, registered mail, delivery to an appointed agent
  • P need not deliver notice personally; can be given by court­appointed agent or agent hired by P
  • See cards 19-20 on Service of Process
• If P knows that notice was not received by D (e.g., by mail), P cannot proceed if practical alternatives to giving notice exist

Question 8

SUBJECT MATTER JURISDICTION OVERVIEW

Answer 8

Fed. courts must have authority over the claim in questions (as opposed to the parties or property, which is the concern of PJ); SMJ refers to courts’ ability to exercise that authority

• Const. provides limits on types of cases that fed. courts can hear
• SMJ cannot be waived

Types of SMJ:

1. Diversity jx (see cards 9-77)
2. Federal question jx (see card 12)
3. Supplemental jx (see card 13)
4. Removal jx (see card 14)

Question 9

DIVERSITY JURISDICTION

Answer 9

Fed. courts have SMJ over controversies between citizens of different states, even where claims do not involve fed. law

Diversity jx conferred by Const. and by statute

Requirements:

1. Complete diversity (see card 10) - every P must be of diverse citizenship from every D (i.e., no diversity if any Pis citizen of same state as any D)
   
   • Does not require that all parties be citizens of different states; just no P and no D can be from the same state (e.g., two Ps can be from Utah, as long as no D is from Utah)
   • Examined at time of filing - diversity need not exist when claim arose
   • Diversity can exist between a citizen of a U.S. state and a foreign country (sometimes called “alienage jx” )
2. Amount in controversy must exceed $75,000 (see card 11)
   
   • P must make good faith allegation that her claim exceeds $75k

Exceptions to diversity jx - fed. courts will not hear actions involving divorce, alimony, child custody, or probate, even if diversity requirements are otherwise satisfied

Question 10

DIVERSITY JURISDICTION: COMPLETE DIVERSITY

Answer 10

Every P must be of diverse citizenship from every D

Determining citizenship

• Natural persons - citizens of the state where they are domiciled at the time the suit is filed
  
  • Domicile - where a person maintains a permanent home
    
    • Person cannot have more than one domicile
  • Factors - for determining person’s domicile, look at:
    
    • Physical - actual presence in the state
    • Mental - intent to make state permanent home (e.g., where person votes, works, is licensed, etc.)
• Corporations - citizens of every state where incorporated and where corp. maintains principle place of business (“PPB”)
  
  • Corp. can have multiple states of citizenship
  • Determining PPB - look to where corp. decisions made, i. e., “nerve center” (usually corp. headquarters)
• Unincorporated businesses (LLCs, LLPs, etc.) - citizens of all states in which any partner or member is a citizen

Question 11

DIVERSITY JURISDICTION: AMOUNT IN CONTROVERSY

Answer 11

P’s complaint must make a good faith allegation that the amount of damages or injury in controversy exceeds $75,000, excluding interest and costs

• Lenient standard - to dismiss for insufficient amount, there must be no legal possibility that recovery will exceed $75k
• Amount actually awarded irrelevant

Equitable relief claims - court looks at value of harm caused

• Can look from either P or D perspective - i.e., does act requiring injunctive relief harm P by more than $75k; or would it cost D more than $75k to comply with the injunction sought?

Aggregating claims

• One P can aggregate all claims against a single D (e.g., must be one P vs. one D)
• If not one P vs. one D, aggregating only allowed if either:
  
  • a) One P has joint liability claims against multiple Ds
    
    • Use total value of the claim
  • b) Multiple Ps seek to enforce a single title or right in which they have a common, undivided interest (rare)
    
    • E.g., several Ps jointly own real estate and sue D to quiet title - undivided interest, so aggregation OK

Question 12

FEDERAL QUESTION JURISDICTION

Answer 12

Fed. courts have jx over properly-pleaded claims that arise under fed. law

• No diversity or amount in controversy requirements

Requirements - claim must show a right or interest founded substantially on fed. law

• Fed. question must appear on the face of the complaint
  
  • FQJ cannot arise based on extraneous allegations or potential defenses
• Analysis - ask if Pis enforcing a fed. right (e.g., one that arises under fed. statute, regulation, Const., etc.)
  
  • If not, no FQJ exists
• Note - beware of fact patterns in which complaint raises a fed. law or issue, but Pis not enforcing a fed. right

Exclusive federal jx - fed. courts have exclusive jx over certain types of claims, which must be heard in fed. court

• Most common areas of exclusive federal jx:

1. Bankruptcy
2. Patent and copyright
3. Federal antitrust claims
4. Postal matters

Question 13

SUPPLEMENTAL JURISDICTION

Answer 13

Supplemental jurisdiction allows a fed. court to hear additional claims (e.g., counterclaims and cross-claims) that do not, on their own, meet diversity or FQJ requirements

• Cannot use supplemental jx to get a case into fed. court

Requirements - common nucleus of operative fact (CNOF)

• Each additional claim must share CNOF with an existing claim that invoked FQJ or diversity jx
  
  • Satisfied if supplemental claims arise from the same transaction or occurrence as the underlying claim

Discretionary factors - court may refuse supplemental claim if:

• a) Original jx claims are dismissed early in the proceeding,
• b) Supplemental claim raises a novel or complex state law issue, or c) Supplemental claim substantially predominates over original jx claims

Limitation - in diversity cases, P cannot use supplemental jx to overcome lack of diversity (does not apply to D)

• P can use supplemental jx to overcome insufficient amount in controversy

Question 14

REMOVAL JURISDICTION

Answer 14

D can remove a case originally filed in state court to fed. court if the fed. court would have had SMJ (i.e., diversity or FQJ)

Removal rules:

1. Can only remove if the case could have been filed in fed. court
2. Only D can remove and all Ds must agree to removal
3. Can only remove to the fed. district embracing the state court in which the case was originally filed
4. A D who files a permissive counterclaim in state court waives the right to remove

• Timing - D must remove within 30 days of service of the first removable document (usually service of process)
• Procedure - D must file notice in state and fed. courts
  
  • Notice must be signed, contain grounds for removal, and copies of all documents served on D in state court
  • Must be provided to all adverse parties

Diversity jx limitations:

• D cannot remove if P filed suit in any D’s home state (i.e., no removal if any D is a citizen of the forum state)
• No removal more than one year after a case is filed in state court

Remand - if removal is improper, court can remand to state court

• Improper procedure - P can move to remand within 30 days
• Lack of SMJ – P can move to remand at any time

Question 15

ERIE DOCTRINE

Answer 15

In diversity cases, fed. courts must apply state substantive law and fed. procedural law; if it is unclear whether a law is substantive or procedural, use the below analysis to determine if state or fed. law applies

Analysis:

1. Is there a valid fed. law (e.g., Const., statute, fed. rule) that is on point and directly conflicts with state law?
   
   • If yes, apply the fed. law
2. If no fed. law is on point, analyze under these tests:
   
   • a) Outcome determinative - would applying or ignoring the state rule affect the outcome of the case?
     
     • If yes, state law is substantive and should be applied
   • b) Balance of interests - does either fed. or state system have a strong interest in applying its rule?
     
     • If one has clearly stronger interest, apply that law
   • c) Forum shopping avoidance - if fed. court ignores state law, would it encourage litigants to flock to fed. court?
     
     • If yes, state law is substantive and should be applied

The following will always be governed by state substantive law:

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

Question 16

VENUE

Answer 16

Venue involves the determination of the judicial district(s) in which P may bring suit

General rules for venue in civil actions – for most civil actions in fed. court, venue is proper:

• a) In any district where any D resides (if all Ds reside in the same state in which the district is located),
• b) In any district in which a substantial part of the claim arose or in which a substantial part of property that is subject to the action is situated, or
• c) If no district in the U.S. can satisfy a) or b) above, venue is proper in any district in which any Dis subject to PJ

Residency for venue purposes

• People - residency determined by domicile
• Non-corporation business - resident of all districts in which it was subject to PJ when action commenced (broader standard than PPB)
  
  • Note: Virginia’s residency rules for LLCs, partnerships = wherever members reside
• Corporations - reside in any state district in which the corporation’s contacts would be sufficient to subject the corporation to PJ if the district were a state
  
  • If no such district exists, a corporation resides in the district where it has the most significant contacts
• Unincorporated associations - residency determined by location of association itself, not individual members

Question 17

TRANSFER OF VENUE

Answer 17

A case may be transferred from one fed. district to another in the interest of justice if the transferee district is one in which the case could have originally been filed

• I.e., can transfer to any district with proper venue, PJ, and SMJ
• Any party may move to transfer venue

If venue in original district is proper - transfer is discretionary

• Court may order transfer based on convenience of parties and witnesses, and/or in the interest of justice
• Court’s discretion based on:
  
  • Public factors - what law applies, which community should be burdened with jury service, etc.
  • Private factors - convenience (e.g., location of evidence, witnesses)

If venue in original district is improper - court may transfer in the interest of justice or dismiss the case

Choice of law - transferee court applies choice of law rules of the original court, regardless of which party sought transfer

• Exception - transferee court will apply its own laws if original venue was improper

Question 18

FORUM NON CONVENIENS

Answer 18

• If there is a far more appropriate court in which a case should be heard (e.g., separate judicial system, foreign country, etc.), the court in which the case was filed may decline to exercise its jx Factors:
• • Court evaluates based on same public and private factors as for venue transfer (i.e., convenience, applicable law, etc.) » Requires strong showing of public and private interests to dismiss or stay » See card 17

Options for court granting forum non conveniens:

• a) Stay the proceeding, or
• b) Dismiss the case
  
  • Usually dismissed without prejudice, which allows P to sue in the more appropriate forum
  • Dismissal often occurs b/c transfer to the more appropriate court is impossible (e.g., b/c it is in a different judicial system or country)
  • Dismissal based on forum non conveniens almost never
    granted if Pis a resident in the present forum

Question 19

SERVICE OF PROCESS

Answer 19

Service of process is the delivery to D by P of the summons and complaint, which satisfies notice requirements for PJ (see card 7)

Service requirements:

• D must be served with:

1. Summons - formal notice of the suit
   
   • Must be signed by court clerk, tell D when/where to appear, and identify the court, parties, P’s attorney
2. Copy of complaint

• Timing - service must be within 90 days of filing of the case
  
  • If not satisfied, case dismissed without prejudice, unless P shows good cause for delay
• Location - D may be served anywhere in forum state
  
  • Out-of-state service OK if allowed by forum state law •
• Who may serve - any non-party aged 18 or older

Exceptions to service of process requirements:

• Immunity from service - D cannot be personally served in a state if in the state solely as a party or witness in another civil case
• Subsequent papers - subsequent papers filed with the court (e.g., answers, discovery requests) do not require formal service
  
  • May be mailed to a party or party agent
    
    • If mailed, recipient gets three extra days to respond

See Card 20 - Methods of Service & Waiver of Service

Question 20

METHODS OF SERVICE & WAIVER OF SERVICE

Answer 20

Acceptable methods of service of process (Rule 4):

1. Personal service
2. Substituted service - left with third party at D’s “usual abode”
   
   • Third party must be legally competent, reside at abode
3. Service Upon D’s authorized agent » Receipt of service must be within scope of agency
4. Mail (if service waived) (see below) - P sends by mail along with waiver form, which D must return
   
   • If mailed, recipient gets three extra days to respond
5. Any method permitted under state law - allowed if state is:
   
   • a) Where the fed. court sits, or
   • b) Where service is effected, i.e., where service occurs

Waiver of service (Rule 4(d)):

• P may request that D waives service by mailing D the complaint and a formal request to waive service
  
  • If D denies request or fails to respond, P must serve through another acceptable method
  • If D agrees to waive service, D extends her time to answer complaint to 60 days from the date the waiver request was sent (as opposed to normal 21 days)
• Waiving service does not waive the right to object to venue or jx

Question 21

INTERLOCUTORY INJUNCTIONS

Answer 21

Interlocutory injunctions are court orders requiring a person to do or cease doing a specific action before trial; governed by Rule 65

• Purpose is to maintain status quo until final judgment •
• Security - movant must provide security for costs and damages if a party is wrongfully enjoined or restrained

Preliminary injunctions - sought by a party prior to trial on the merits of the complaint

• Court may issue only on notice to adverse party, who must receive an opportunity to be heard

Temporary restraining orders (TROs) - issued by the court, in its discretion, when necessary to prevent irreparable injury to a party that will result before preliminary injunction hearing can be held

• Expires after 14 days unless extended by the court
• Notice to adverse party - not required if moving party:
  
  1. Shows immediate and irreparable injury will result to her before adverse party can be heard in opposition; and
  2. Describes efforts made to give adverse party notice, and why notice should not be required
• Actual notice - one subject to a TRO must have actual notice before they can be held in contempt for violating it

Question 22

COMPLAINT

Answer 22

The initial pleading in a lawsuit, filed by P, which begins an action

Requirements - complaint must contain:

1. Statement of jx - short and plain statement of grounds upon which the court’s jx depends (i.e., why court has jx) 2)
2. Statement of the claim - short and plain statement of P’s claim, showing entitlement to relief
   
   • Notice pleading standard - complaint must give enough information to allow adverse party to be on notice and make a reasonable response
     
     • Detailed facts not required; allegations must only be sufficient for the court to plausibly infer that D could be liable if the allegations are true
   • Exceptions - certain claims/issues must be pleaded with particularity, including:
     
     • a) Fraud or mistake
     • b) Special damages
     • c) Judgments or official documents upon which the pleading party will rely
3. Demand for judgment for relief sought - description of relief sought (e.g., money damages, injunction, etc.)

Question 23

ANSWER

Answer 23

Response to the complaint, in which D states defenses to each claim asserted and admits or denies each count of P’s complaint

• Governed by Rule 8
• Defenses can be pleaded in the alternative
  
  • E.g., in breach of K claim, D can deny K existed but also answer that if a K did exist, D performed under the K •
• Timing - must be filed within 21 days of service of process, or 14 days after a ruling on a Rule 12 motion

Requirements - answer must:

1. Respond to allegations of complaint - available responses:
   
   • a) Admit allegations
   • b) Deny allegations
     
     • Failure to deny can constitute admission on any issue except damages
   • c) Lack sufficient information to admit or deny allegations
2. Raise affirmative defenses - certain defenses are waived if not explicitly pleaded in the answer; these include:
   
   • i. Contributory negligence
   • ii. Claim preclusion
   • iii. Statute of frauds
   • iv. Fraud
   • v. Statute of limitations
   • vi. Self-defense

Counterclaims - D’s claims against P may be required in D’s answer (compulsory) or may be brought separately (permissive) (see card 25)

Question 24

RULE 12 MOTION

Answer 24

D may attack the validity of P’s complaint through a Rule 12 motion

Rule 12(b) defenses:

1. Lack of SMJ
2. Lack of PJ*
3. Improper venue*
4. Insufficiency of process*
5. Insufficiency of service of process*
6. Failure to state a claim (see card 50)
7. Failure to join a necessary party

*Waiver - these defenses are waived if not included in D’s Rule 12 motion, provided they were available

• Rule 12(b) defenses may be raised by motion or in the answer
• Must be filed before an answer if a responsive pleading is allowed

Motion for more definitive statement (Rule 12(e)) - if complaint is so vague or ambiguous that D cannot reasonably prepare a response, D may move for a more definitive statement from P

Motion to strike (Rule 12(f)) - D may move to strike from the complaint (or court may strike on its own) any redundant, immaterial, impertinent, or scandalous material

Motion for judgment on the pleadings (Rule 12(c)) - similar to Rule 12(b)(6) motion for failure to state a claim; difference depends on timing (see card 50)

Question 25

COUNTERCLAIM

Answer 25

An offensive claim, either compulsory or permissive, raised by D against P, which may be pleaded in D’s answer to the complaint

• Jurisdictional requirement - D must ensure the court has jx to hear any counterclaim
  
  • Note - compulsory counterclaims will almost always have supplemental jx

Compulsory counterclaim (Rule 13(a))

• Claim by D against P that arises from the same transaction or occurrence as one of P’s claims
• Must be filed in D’s answer or it will be waived (i.e., D cannot assert it in a separate action at a later time)

Permissive counterclaim (Rule 13(b))

• Claim by D against P that does not arise from the same transaction or occurrence as any of P’s claims
• May be filed with D’s answer to P’s complaint, or can be asserted in a separate action filed by D

Question 26

CROSS-CLAIMS

Answer 26

Offensive claims asserted by a co-party; governed by Rule 13

• E.g., P sues D1 and D2; D1 may assert a cross-claim against D2

Requirements - same transaction or occurrence

• Cross-claims must arise from the same transaction or occurrence as the underlying action
  
  • Never compulsory, unlike counterclaims stemming from the same transaction or occurrence (see card 25)

Jurisdiction - must have independent basis for SMJ

• Cross-claims will almost always satisfy supplemental jx requirements b/c they must arise from the same transaction or occurrence

Question 27

AMENDING PLEADINGS

Answer 27

Under Rule 15, parties may amend their pleadings once as a matter of course

• Additional amendments may be granted with consent of other parties or court permission (amendment without right)

Amendment as a matter of course - may occur either:

• a) Within 21 days after service, or
• b) If the pleading is one which requires a response, within 21 days of service of the responsive pleadings or pre-answer motion (e.g., a Rule 12 motion)
  
  • E.g., if D answers P’s complaint, P has 21 days from service of the answer to amend complaint
• Party has 14 days or time remaining on initial 21-day deadline (whichever is longer) to respond to an amended pleading
• Amendment without right - party may only amend with either:
  
  • a) Written consent of the adverse party, or
  • b) Leave of court (i.e., court’s permission)
    
    • Leave of court must be sought through a motion » Leave will be granted freely when justice requires (lenient standard); court looks to:
      
      • i. Delay that will be caused;
      • ii. Potential prejudice to parties; and
      • iii. Futility of amendment

Question 28

AMENDING PLEADINGS: RELATION BACK

Answer 28

The relation back doctrine applies when a party amends a pleading to add a new claim or D after the statute of limitations has run; governed by Rule lS(c)

• If allowed to relate back, the amended pleading will be treated as if it was filed when the original pleading was filed

Requirements:

• New claim - amendment will relate back if the new claim concerns the same conduct, transaction, or occurrence as the original pleading
  
  • I.e., if the new claim is based on the same general set of facts as the original pleading
• New or substituted D - amendment will relate back if:
  
  1. Amendment concerns the same conduct, transaction, or occurrence as original pleading, and
  2. Within 90 days of filing of the original pleading:
     
     • i. New D knew of or received notice of action; and
     • ii. New D knew or should have known that, but for a mistake, she would have been named originally
       >> Applies when P sued the wrong D first, but the right D was aware of the mistake

Question 29

RULE 11 CERTIFICATION & SANCTIONS

Answer 29

Rule 11 requires the attorney or pro se party to sign all pleadings, written motions, and other papers

Certification - signature acts as certification that, to the best of the signor’s knowledge, after all reasonable inquiry taken:

1. Filing is not for an improper purpose (e.g., harassment, delay);
2. Non-frivolous legal contentions made are warranted by law; and
3. Factual contentions and denials have or are likely to have evidentiary support

Sanctions - court may issue sanctions for violations, either on the court’s own initiative or an opponent party’s motion

• Safe harbor - Rule 11 motion for sanctions may not be filed until 21 days following service of the offending document
  
  • Party may withdraw the offending document or remedy the problem
  • If not remedied or withdrawn, motion can be filed

Hearing required - court must give attorney or party a chance to be heard before imposing sanctions

Question 30

PERMISSIVE JOINDER

Answer 30

Rule 20 permits a P, in certain circumstances, to join other Ps and/or to join several parties as co-Ds

• Joining additional Ps relies on their willingness to join
• Joining additional Ds lies in the hands of the P asserting the claim

Requirements - permissive joinder is allowed where:

1. Joined parties assert any right to relief arising out of the same transaction or occurrence as P’s claim
   
   • Ds may be joined if right to relief asserted against them arises from same transaction or occurrence
2. There is at least one common question of law or fact in the joined parties’ claims or claims against them
   
   • E.g., after bus accident, all injured passengers and bystanders join as Ps; common issue is driver’s negligence; other issues (e.g., damages) are tried individually for each P

Note - distinguish from lmpleader (Rule 14(a)), which involves permissive joinder by D (see card 32), whereas Rule 20 involves permissive joinder by P

Question 31

COMPULSORY JOINDER

Answer 31

Under Rule 19, certain non-parties (absentees) may be forced to join a case if they are deemed necessary parties

Necessary parties - absentees are necessary when either:

• a) Without absentee, court cannot grant complete relief,
  
  • Consider whether multiple suits might follow if absentee is not made a party
• b) Absentee has a legal interest that may be impaired or impeded, or
• c) Absentee has an interest that creates a risk of multiple or inconsistent rulings and obligations

Requirements - absentee can be joined as a necessary party if:

1. There is PJ over the absentee; and
2. Joining the absentee will not destroy diversity

Indispensable parties - if a necessary party cannot be joined, ask whether the party is so indispensable that the case should be dismissed; court looks at these factors:

1. Is an alternative forum available?
2. What is the likelihood of prejudice to the parties or others if the case goes forward?
3. Can the court shape potential relief to avoid prejudice?
4. Would P have an adequate remedy if the case is dismissed7

Question 32

IMPLEADER

Answer 32

Under Rule 14(a), D can join a non-party who is or may be liable to D for all or part of the claim brought by P against the original D

• Allows D to assert claims for indemnity, contribution, etc. against another party for the claim D is defending
• Terminology:
  
  • Newly joined party is third-party D (“TPD”)
  • Original D becomes third-party P (“TPP”)
• D’s claim under impleader must be derivative - D/TPP cannot claim that TPD is solely liable to P
• Jurisdiction - court must have PJ over impleaded party; court will generally have supplemental jx

Requirements:

• D has an absolute right to implead TPD within 14 days after serving her answer by filing a third-party complaint against TPD
  
  • After 14 days, D must get permission from court

Additional claims involving TPD:

• Once TPD is joined, TPD may make claims of her own against other parties as long as SMJ exists over each claim
  
  • SMJ will usually exist through supplemental jx
• Original P may assert claims against TPD arising from the same transaction or occurrence as P’s original claims against D/TPP

Question 33

INTERVENTION

Answer 33

• INTERVENTION Under Rule 24, a non-party absentee may seek to join (i.e., intervene) in an already pending suit, either as a P or D Intervention as a right - must be allowed if either:
• a) Absentee’s interest will be harmed if not joined and no existing party will adequately represent that interest, or b) Absentee has an unconditional statutory right

Permissive intervention - allowed in court’s discretion if either:

• a) Absentee has a claim or defense that shares a common question of law with the underlying action,
• b) Absentee has a conditional statutory right, or
• c) Absentee is a govt. officer or agency and an existing claim or defense relates to the officer/agency or a statute, regulation, etc. Court must also consider whether intervention will unduly delay or prejudice adjudication of original parties’ rights

Intervention & jurisdiction

• In diversity cases, interveners must establish independent SMJ
• Supplemental jx will not cover diversity intervention

Intervention vs. compulsory joinder (Rule 24 vs. Rule 19)

• Rule 19 forces absentee into suit; narrow; must be very necessary for the court to force an absentee into a case (see card 37)
• Rule 24 lets absentee join suit voluntarily; more lenient

Question 34

INTERPLEAD

Answer 34

Rule 22 interpleader allows a property holder to initiate a suit to compel multiple claimants to that property to litigate the dispute

• lnterpleader is allowed under both fed. statute and Rule 22
• Property holder = stakeholder
• Other parties who want the property = claimants

Rule 22 interpleader

• Complete diversity required - stakeholder must be diverse from all claimants; amount in controversy must exceed $75k
• Service of process and venue requirements are the same as for any other fed. case

Statutory interpleader

• Diversity requirement - one claimant must be diverse from at least one other claimant
  
  • Amount in controversy must be $500 or more
• Nationwide jx - service is proper on anyone in the U.S. • Venue is proper in any district where any claimant resides

Example - deceased had life insurance policy with DE corp. having PPB in CA; claimants from NJ, NV, & CA all claim interests

• Rule 22 interpleader - improper b/c lack of diversity •
• Statutory interpleader - proper b/c claimants from different states

Question 35

CLASS ACTIONS OVERVIEW

Answer 35

Under Rule 23, an individual or small group can represent a larger group (class) sharing a common interest in a lawsuit

• Usually involves Ps as class, though Ds can form a class action
• Only representative class members must satisfy requirements for PJ, SMJ, and venue

Rule 23(a) prerequisites - four requirements must be satisfied:

1. Numerosity - class size must be so numerous that joinder is impracticable
   
   • No exact threshold as to class size requirement; depends on context of case and claims
2. Commonality - there must exist questions of law or fact common to the entire class
3. Typicality - claims or defenses of the class representatives are typical of those of the class
4. Adequacy - class representatives will fairly and adequately protect interests of the entire class
   
   • E.g., representatives must not have conflicts of interest with class members, class counsel must be competent

See cards 36-38 on Class Actions

Question 36

TYPES OF CLASS ACTIONS

Answer 36

Rule 23(b)(1) - anti-prejudice device

• Used where actions by or against class members would create a risk of inconsistent decisions or impairment of class interests
  
  • Note - uncommon and unlikely to be tested on MBE

Rule 23(b)(2) - injunction or declaratory judgment

• Allows class where suit requests injunctive or declaratory relief as the primary relief sought (i.e., not damages)
  
  • E.g., employment discrimination, civil rights cases

Rule 23(b)(3) - damages

• Most common class action type; used where primary relief sought is damages
• Requirements:
  
  1. Predominance - common questions of law or fact predominate over individual questions, and
  2. Superiority - class action is superior to other procedures to resolve the dispute
• Class members have opt-out rights - judgment only binds class members who do not opt-out
• Notification required - all reasonably identifiable class members must be notified of pend ency of the action, including opt-out rights and right to appear via separate counsel

Question 37

JURISDICTION & CLASS ACTIONS

Answer 37

Personal jurisdiction - Absent class members are not required to meet minimum contacts requirements

• PJ due process requirements satisfied by reasonable and adequate notice to class members, opportunity to opt out (if applicable), and adequate representation

Subject matter jurisdiction

• Federal question jx - same rules as in individual cases
• Diversity jx - in determining amount in controversy and citizenship, court looks only to class representatives
  
  • Diversity requirements satisfied if:
  1. Class representatives are diverse from all opposing parties; and
  2. Class representatives’ claims exceed $75k

Class Action Fairness Act (CAFA)

• Separate means of obtaining SMJ in class action; jx exists if:

1. Any class member is diverse of any opposing party, and
2. Aggregated claims of the class exceed $5 million

• Doess not apply to:
  
  • Class actions with fewer than 100 class members
  • Shareholder claims against corporate management
  • Certain state securities law fraud claims

Question 38

CLASS ACTION CERTIFICATION, JUDGMENT & SETTLEMENT

Answer 38

Certification

• Court must determine at an early practicable time whether to allow the case to proceed as a class action (i.e., certify class)
• If a class is certified, court must:
  
  1. Define the class (i.e., who can be a class member), the class claims, issues, and defenses
  2. Appoint class counsel - class counsel must fairly and adequately represent interests of the class as a whole
• Certification can be appealed via interlocutory appeal before final judgment on the merits (see card 59)

Judgment - binding as to all absent class members, unless they opt out, if applicable

Settlement

• Court must approve any settlement reached between class representatives and opposing party
  
  • Settlement must be fair, reasonable, and adequate
  • Court will seek feedback from absent class members in deciding whether to approve or reject the settlement

Question 39

DISCOVERY OVERVIEW

Answer 39

Discovery involves a court-mandated process of acquiring and producing information from parties and non-party witnesses

• Conducted by parties - court helps the process move forward, but does not actively participate in the exchange of information

What is discoverable? - two overarching queries:

1. What is the scope of discovery? (see card 41)
2. Is relevant information privileged? (see card 45)

Process of discovery

1. Initiating discovery - under Rule 26, parties must:
   
   • a) Mee_t & confer: discuss claims and develop proposed discovery plan (see card 40)
   • b) Initial disclosures: disclose discoverable information, insurance, and damages information (see card 42)
   • c) Scheduling: court and parties will develop scheduling order with deadlines for completing discovery
2. Conducting discovery - depositions, requests for production, interrogatories, requests for admission, etc. (see cards 43-44)
   
   • Followed by expert testimony and pretrial disclosures

Question 40

CONFERENCES

Answer 40

Under Rule 16 (in conjunction with Rule 26), party representatives must meet and confer with each other and/or the court at various times throughout the proceeding

• Most of these conferences are for discovery purposes

Mandatory meet & confer - parties must meet at least 21 days before the scheduling conference (see below) to:

1. Discuss claims, defenses, and settlement; and
2. Develop a plan for discovery
   
   • Must present written discovery plan to court within 14 days of the meet and confer

Scheduling conference - conference at or after which judge issues scheduling order setting deadlines for filings of pleadings, joinder, amendments, and discovery deadlines

Pretrial conference - conference before the court; held as needed to move case forward and encourage settlement

• Final pretrial conference - may be set to finalize issues to be resolved at trial and evidence to be presented
  
  • Memorialized in pretrial conference order
  • Issues not included in the pretrial conference order are generally excluded at trial

Question 41

SCOPE OF DISCOVERY

Answer 41

Material is discoverable if it is:

1. Non-privileged
2. Relevant to a claim; and
3. Proportional to the needs of the case - factors:
   
   • i. Amount in controversy
   • ii. Importance of issues at stake in the action
   • iii. Resources of parties involved
   • iv. Importance of discovery in resolving issues at stake
   • v. Whether burden or expense of proposed discovery outweighs its likely benefit

Privileged material - undiscoverable (see card 45)

• Types of privileges recognized:

1. Attorney-client
2. Work product
3. Physician-patient
4. Clergy-penitent
5. Marital
6. Journalist-source
7. 5th Amend. privilege against self-incrimination

• Work product may be discoverable upon showing of substantial need for material that is otherwise unavailable
• Objections to discovery requests based on privilege must be stated with particularity

Question 42

MANDATORY DISCLOSURES

Answer 42

Involves information that parties must disclose, irrespective of requests from the opposing party

Initial disclosures - under Rule 26(a), parties must disclose:

1. Sources of discoverable information - all people, documents, and electronic sources likely to have discoverable information
   
   • I.e., people and documents a party may use to support her claims or defenses
2. Damages - computation of damages claimed
3. Insurance - any insurance agreement that may be used to satisfy all or part of a judgment

• Timing: within 14 days of parties’ Rule 26(f) meet and confer
  
  • Parties served or joined later must make initial disclosures within 30 days of being served or joined

Expert disclosures - at least 90 days before trial, parties must identify experts who may be used at trial and produce a report containing experts’ opinion, data used, qualifications, etc.

Pretrial disclosures - parties must give detailed information about evidence to be used at trial at least 30 days before trial

• E.g., documents to be used as evidence, identity of witnesses to testify, etc.

Question 43

INTERROGATORIES, RFPs, RFAs, & EXCLAMATIONS

Answer 43

Interrogatories (Rule 33) - written questions proposed by one party to an opposing party

• Typically used to ask about identity of documents and people who may have information related to claims and defenses
• Deadline for response is 30 days

Requests for production (“RFPs”) (Rule 34) - written requests to a party to make documents or other things within the party’s control available to review, inspect. and/or copy

• Deadline for response is 30 days after RFP served
• Non-party may be compelled to produce material under Rule 45 subpoena

Requests for admission (“RFAs”) (Rule 36) - requests to parties to admit the truth of discoverable information

• If a party has admitted information, it does not have to be litigated at trial; opposing party can show jury the admission
• Deadline for response is 30 days - responding party can admit. deny, or state that it lacks knowledge

Physical or mental examinations (Rule 35) - only available through court order where a person’s physical or mental condition is an issue in the case (e.g., tort involving injury)

• Must show that party’s health or condition is in controversy
• If allowed, doctor-patient confidentiality privilege disappears

Question 44

DEPOSITIONS

Answer 44

Oral proceedings in which an attorney may examine any person under oath; governed by Rule 30

• Testimony is sworn and subject to penalties for perjury
• Parties - notice of deposition will compel attendance
• Non-parties - may be deposed, but must be subpoenaed
• Documents - subpoena duces tecum used to compel a deponent to bring documents to deposition

Scope - may cover any issue within the scope of discovery

• Objections - deponent’s counsel may object to questions, but deponent is still required to answer
  
  • Exception - if an objection based on privilege (i.e., answering would reveal privileged information), counsel can instruct deponent not to answer

Length - limited to one day for seven hours

• Must seek court approval to take more than 10 depositions or depose the same person twice

Question 45

PRIVILEGED MATERIAL

Answer 45

Otherwise discoverable information need not be disclosed if a privilege applies

• Privilege determined under Fed. Rules of Evidence

Attorney-client privilege - protects information exchanged confidentially between attorney and client

• To invoke the attorney-client privilege, a party must demonstrate the communication was:
  
  1. Made between client and counsel;
  2. Intended to be and was, in fact. kept confidential; and
  3. Was made for the purpose of obtaining or providing legal advice

Work product privilege - protects material prepared by or for an attorney in anticipation of litigation

• Rule - documents and tangible things prepared in anticipation of litigation or for trial are not discoverable unless the opposing party shows:
  
  1. Substantial need for material; and
  2. Inability, without undue hardship, to obtain the substantial equivalent of materials by other means

Question 46

PROTECTIVE ORDERS AND MOTIONS TO COMPEL

Answer 46

Protective order (Rule 26(c)) - a court order limiting discovery of material; sought by party seeking to prevent disclosure

• Usually used to prevent disclosure of material that is privileged, highly embarrassing, trade secret, and/or clearly outside scope of appropriate discovery
• Moving party must certify they have or have attempted to meet and confer with affected parties to resolve dispute
• Standard - court may issue protective order for good cause
  
  • Order can limit, condition, delay, or bar discovery of affected information

Motion to compel (Rule 37(a)) - a party may move for an order compelling disclosure or discovery of requested material

• Often arises when discoveree (i.e., party holding information) claims withheld materials are privileged
• Motion must certify that moving party has made a good faith attempt to obtain discovery absent court intervention
• Judge will call hearing to confer with parties regarding dispute and make decision on whether material may be withheld

Question 47

DISCOVERY SANCTIONS

Answer 47

A court may sanction parties for discovery violations, either on its own or upon motion of a party

Grounds for sanctions - court can sanction any type of failure to comply with discovery obligations or court order

Types of sanctions - sanctions will depend on type of violation:

• Partial violations - less serious discovery violation (e.g., party makes frivolous objections in RFAs)
  
  • Court may issue order compelling discoveree to respond to discovery requests; can also award costs to party for bringing motion to compel (including attorneys’ fees)
• Complete violations - wholesale violation of discovery rules (e.g., violation of discovery order); court may:
  
  • Strike pleadings; disallow evidence; establish disputed or unanswered facts as true; issue monetary sanctions; dismiss P’s case (very serious, requires bad faith); enter default judgment (very serious, requires bad faith); hold disobedient party in contempt of court
  • Motion to compel not required before moving for sanctions

Question 48

VOLUNTARY DISMISSAL

Answer 48

Under Rule 41, P may voluntarily dismiss her case, either with or without court approval (i.e., leave of court)

Dismissal without leave of court - allowed before D serves an answer or motion for summary judgment (“MSJ”)

• P voluntarily dismisses by filing written notice of dismissal or stipulation signed by all parties who have appeared
• Dismissal is without prejudice, i.e., P can bring claims again
  
  • Exception - dismissal is with prejudice if P previously filed and dismissed the same claims
  • Dismissal can also be with prejudice if it is a condition of parties’ settlement agreement

Dismissal with leave of court - required if there has been an answer, motion, or prior dismissal

• Court has discretion to grant dismissal on terms and conditions it deems proper
• Dismissal is without prejudice unless court states otherwise
• Pending counterclaim - if D has filed a counterclaim, P cannot voluntarily dismiss without D’s consent

Question 49

DEFAULT & DEFAULT JUDGMENT

Answer 49

Under Rule 55, default judgment against D may be entered when D fails to plead or otherwise defend a properly served complaint

Procedure - P files motion for default judgment against D

• Clerk enters default on docket if P shows D failed to respond within 21 days of being served (60 days if service waived)
  
  • Default does not automatically entitle P to recovery; clerk or judge must enter judgment of default
• Default judgment by court clerk - may be entered if:
  
  1. D has not responded at all;
  2. Claim is for money damages;
  3. P gives an affidavit of sum owed; and
  4. D is not a minor or incompetent
• Default judgment by judge - if elements above are not met, judge may still enter default judgment
  
  • Judge will hold hearing on provable damages

Recovery - limited to amount demanded in complaint

Setting aside default judgment - court may set aside default judgment for good cause shown within one year

• Usually satisfied if D can show some excusable neglect, mistake, or fraud

Question 50

FAILURE TO STATE A CLAIM &

MOTION FOR JUDGMENT ON THE PLEADINGS

Answer 50

Under Rule 12, D may move to dismiss for failure to state a claim or move for judgment on the pleadings due to P’s failure to bring a plausible claim

• I.e., D arguing that even assuming all allegations in P’s complaint or pleadings are true, P cannot win
• If granted, P will usually be given leave to amend her complaint

Failure to state a claim vs. motion for judgment on the pleadings

• Timing of filing:
  
  • _​_Before D files answer = Rule 12(b)(6) motion to dismiss »
  • After D files answer = Rule 12(c) motion for judgment on the pleadings
• Materials reviewed by court:
  
  • Rule 12(b)(6) motion - court reviews sufficiency of P’s complaint alone
  • Rule 12(c) motion - court reviews all pleadings

Question 51

SUMMARY JUDGMENT

Answer 51

Under Rule 56, either party may file a motion for summary judgment (“MSJ”) asking the court to enter judgment

• Must be filed no later than 30 days after close of discovery

Burden for moving party - must show:

1. There is no genuine dispute of material fact; and
2. Moving party is entitled to judgment as a matter of law

• I.e., no reasonable person could find for non-moving party
• Motion is based on pleadings and evidence submitted

Burden-shifting - if party moves for summary judgment. burden shifts to non-moving party to show that a triable issue exists Evidence - examined in the light most favorable to the non-moving party

• Court can look at whole record of admissible evidence (e.g., affidavits, verified pleadings, discovery materials, etc.)
  
  • Evidence must be admissible to be considered
  • Note - this distinguishes MSJ from Rule 12(b) or 12(c) motions, in which court may only look at complaint or all pleadings (see card 50)

Partial summary judgment - court can grant summary judgment on only certain claims

Question 52

ALTERNATIVE DISPUTE RESOLUTION & SETTLEMENT

Answer 52

Fed. courts must have an ADR program and the FRCP actively encourages settlement through various means, including mandatory settlement conferences

ADR - generally refers to any means of settling disputes outside the courtroom, including arbitration and mediation

Mandatory settlement conference - court-appointed advisor meets with parties privately and offers evaluation of the weaknesses of their respective cases

Settlement offers - a party defending a claim may make a formal settlement offer at least 14 days before the date set for trial

• Settlement for less than offer - if claimant rejects settlement offer and obtains judgment less favorable than the unaccepted offer, claimant must pay costs incurred by the offering party after the offer was made

Question 53

RIGHT TO A JURY TRIAL & VOIR DIRE

Answer 53

Right to trial by jury

• 7th Amend. provides a right to a jury trial in all civil actions at law » Demand for jury trial - must be made within 14 days of service of the last pleading raising a triable issue
  
  • Otherwise, right to jury trial is waived
• Number of jurors - minimum of six jurors, maximum of 12
  
  • Six jurors must be unanimous to reach a verdict
  • No alternate jurors in fed. court
• Cases involving law and equity claims - right to jury trial exists on underlying claims at law, but not equitable claims
  
  • Jury will decide underlying facts on claim at law first; equity claims left for judge to decide

Voir dire - jury selection process occurring at beginning of trial

• Each party may strike jurors, either for cause or through peremptory challenges
• For-cause strikes - used to strike potential juror for cause
  
  • E.g., bias, prejudice, relation to party
  • Each side has unlimited for-cause strikes
• Peremptory strikes/challenges - can be used for any race-neutral and gender-neutral purpose
  
  • Each side has three to use during voir dire

Question 54

JURY INSTRUCTIONS

Answer 54

Jury instructions (Rule 51) - parties may file requested jury instructions to be given to the jury during deliberations

• Usually given to jury at close of evidence
• Proposed instructions - court gives parties its proposed jury instructions before final arguments
  
  • Objections - parties must have a reasonable opportunity to object before final arguments and before instructions are delivered to the jury

Jury verdicts (Rule 49) - court decides verdict to be used:

• General verdicts - jury finds for P or D and decides amount of damages or relief due
• Special verdicts - jury asked to make factual findings; court applies the law to those facts
  
  • Court submits questions to jury regarding each ultimate fact and makes legal conclusions based on jury findings
  • Parties must object to proposed jury questions before jury deliberates
• General verdict with interrogatories - court can require a general verdict and ask jury to answer specific questions concerning ultimate facts
  
  • Purpose is to ensure jury properly considered important issues

Question 55

JUDGMENT AS A MATTER OF LAW

Answer 55

In extraordinary circumstances, a judge can take a case from the jury and render a decision on an issue under Rule 50

• Can occur during trial (JMOL) or after jury verdict (RJMOL) • Court views evidence in light most favorable to non-moving party

Judgment as a matter of law (JMOL) (a.k a. “directed verdict”)

• Motion brought by either party before case submitted to jury
  
  • D can bring motion upon close of P’s evidence or all evidence; P can file at close of all evidence
• Standard - court can grant JMOL on an issue if a reasonable jury would not have a sufficient evidentiary basis to disagree as to the result (i.e., reasonable people could not disagree)

Renewed motion for JMOL (RJMOL) (a k.a “JNOV”)

• After court enters judgment based on jury verdict, losing party can file RJMOL for entry of judgment in his favor
  
  • Must be filed within 28 days after entry of judgment » Can only be filed if JMOL was originally filed
• Standard - court may grant RJMOL if reasonable people could not disagree that verdict was wrong
• Note: occasionally referred to as “judgment notwithstanding the verdict” or “JNOV”

Question 56

MOTION FOR A NEW TRIAL

Answer 56

Under Rule 50, either party may file a motion for a new trial if judgment was entered but serious errors occurred at trial

• Must be filed within 28 days after entry of judgment

Grounds for new trial - unlimited, but potential errors include:

• Prejudicial error - serious error that makes judgment unfair
  
  • E.g., judge misstates law, gives wrong jury instructions
• Prejudicial misconduct - of a party, attorney, juror, etc.
  
  • E.g., jury considers evidence excluded at trial
• Judgment against weight of evidence - jury erred in reaching verdict given the evidence before it
• Newly discovered evidence
• Excessive or inadequate damages - [federal] court cannot increase jury award (violates 7th Amend.); judge can order a new trial or offer remittitur if convinced the award is too high
  
  • Remittitur - if jury awards an amount that is so high it shocks the conscience, court can order a new trial or offer Pa choice of taking a lesser figure set by the court

Motion for new trial vs. JMOL or RJMOL:

• In granting a new trial, court is not directing a judgment, only stating that the process should begin anew (i.e. the winning party may just win again)

Question 57

MOTION TO SET ASIDE JUDGMENT OR ORDER

Answer 57

Under Rule 60, a court may relieve a party from judgment or a court order if any of the following issues arise:

1. Mistake, inadvertence, or excusable neglect
   
   • Motion may be brought any time that is reasonable within one year of entry of judgment or order
2. New evidence undiscoverable at time of trial
   
   • Evidence that could not have been discovered with due diligence in time for a new motion
   • Motion may be brought anytime that is reasonable within one year of entry of judgment
3. Fraud, misrepresentation, or misconduct by opposing party
   
   • Motion may be brought anytime that is reasonable within one year of entry of judgment
4. Judgment is void
   
   • Motion must be brought within a reasonable time
5. Judgment has been satisfied or discharged
   
   • Motion must be brought within a reasonable time
6. Any other reason that justifies relief
   
   • Catchall used in extraordinary circumstances
   • Motion must be brought within a reasonable time

Question 58

APPEALS & FINAL JUDGMENT RULE

Answer 58

Appellate courts - look at potential errors on questions of law, not questions of fact

• Review is deferential, especially concerning case management and fact-finding issues

Final Judgment Rule - appeal may only be taken from a final judgment, meaning trial court has made an ultimate decision on the merits of the entire case

• Without final judgment or basis for interlocutory appeal, appellate court lacks jx
• Exceptions - may be appealed without final judgment:
  
  • Orders involving injunctions - entitled to interlocutory appeal (see card 59)
  • Orders involving certification of class actions - may be appealed in discretion of Court of Appeals (see card 38)
  • Orders involving debatable questions of controlling law

Multiple claims and/or parties - trial court may direct entry of final judgment as to one or more party and/or claim, which is then appealable

Timing - must file notice of appeal in trial court within 30 days of entry of final judgment

Question 59

INTERLOCUTORY APPEALS & EXTRAORDINARY WRITS

Answer 59

Though generally only final orders are appealable, some interim (interlocutory) orders may be appealed before final judgment

Interlocutory orders reviewable as of right:

1. Injunctions - orders concerning an injunction
2. Receivers - orders concerning appointment of receivers
3. Patent - orders where only an accounting is left in the case
4. Property - orders affecting property (e.g., attachment)

Interlocutory Appeals Act - appellate court may hear appeal of non­final order if trial judge certifies order involves a controlling issue of law with substantial ground for difference of opinion

Class action - appellate court may review an order granting or denying class certification Collateral order exception - appellate court may hear an interlocutory appeal on an issue if it is:

1. Too distinct from the merits of the case (i.e., collateral)
2. Too important to be denied review; and
3. Would essentially be unreviewable if parties waited for final judgment (e.g., claim of immunity under 11th Amend.)

Extraordinary writ - party aggrieved by unappealable order may seek a writ of mandamus or writ of prohibition to compel or prohibit lower court action; must show irreparable harm will occur and normal route of appeal is inadequate

Question 60

CLAIM PRECLUSION (RES JUDICATA)

Answer 60

A party that has had an opportunity to litigate a claim cannot relitigate the claim once final judgment has been rendered

• Claim preclusion is an affirmative defense - should be raised in D’s answer

Requirements - new claim will be precluded if:

1. Same parties - the second case was brought by the same party against the same party (e.g., same P against same D)
2. Same claim - same claims in the first and subsequent suit
   
   • Claim refers to the transaction or series of transactions or occurrences giving rise to the action
   • I.e., even if not previously raised, claim can be precluded if it is sufficiently related to prior claims
3. Final judgment on the merits in original claim
   
   • Case is final even if it is being appealed
   • Judgment is on the merits except if based on either:
     
     • a) Jurisdiction,
     • b) Venue, or
     • c) Indispensable parties

Question 61

ISSUE PRECLUSION (COLLATERAL ESTOPPEL)

Answer 61

Prevents relitigation of particular issues of fact or law that have been actually litigated and previously determined

• Narrower than claim preclusion; does not preclude the whole claim necessarily, just the same issue
• Issue must have been actually litigated - distinguish from claim preclusion, which only requires opportunity to litigate

Requirements:

1. Final judgment on the merits - first case ended in valid, final judgment on the merits
2. Same issue - same issue was actually litigated and determined in the first case
3. Issue was essential to the judgment - i.e., judgment would have been different in the first case absent litigation of this issue
   
   • Must be clear how the issue was decided by the original trier of fact
4. Asserted against actual party to previous case

Who may assert issue preclusion - two views:

• Mutuality (traditional view) - only parties to prior litigation can assert issue preclusion
• Non-mutuality (modern view) - issue preclusion may be asserted by those who were not parties in the prior litigation
  
  • See card 62

Question 62

ISSUE PRECLUSION: OFFENSIVE & DEFENSIVE USE OF PRIOR JUDGMENT

Answer 62

Non-mutual issue preclusion may be used defensively or offensively, although courts are reluctant to allow offensive use

Defensive use of prior judgment - D seeks to prevent P from relitigating an issue P lost in a prior suit against a different party

• Allowed if the party against whom issue preclusion is asserted had a full chance to litigate the issue previously
  
  • E.g., D in second case can preclude P from relitigating an issue P lost to another D in a prior case

Offensive use of prior judgment - P seeks to prevent D from relitigating an issue that D previously lost in a prior suit against a different party; highly disfavored and rarely allowed

• Court will allow only if deemed fair after balancing factors
• Factors:
  
  1. Whether party against whom prior judgment is asserted had full and fair opportunity to litigate
  2. Whether party could foresee multiple suits being filed
  3. Whether issue preclusion was unavailable in prior action
  4. There are no inconsistent judgments on the record