Fed Jx

Question 1

What are necessary (“required”) parties that must be joined?

Answer 1

If a party is “necessary”, the court may order joinder of the absenteePROVIDED the ct has pjx over ∆ and joinder won’t mess up diversity “Necessary” = Without the absentee party, the ctcannot accord complete relief among those already joined (worried about multiple suits); The absentee’s interest will be harmed if he isn’t joined (practical harm); OR Absentee claims an interest which subjects a party (usually ∆) to possibility of multiple obligations NOTE: Joint tortfeasors are NOT necessary If party CANNOT be joined, the ct has 2 choices: (1) proceed w/o absentee ∆; OR(2) dismiss the ENTIRE case→based on balancing: Whether there is an alternative forum available where EVERYONE can be joined Likelihood of real harm to anybody by proceeding w/o absentee Can the ct do anything to avoid harm to absentee IF ct, dismisses, then absentee was “indispensable”

Question 2

What 6 types of claims may be joined in a pending case?

Answer 2

Type of Joinders

• Counterclaims
• Cross-claims
• Impleader
• Intervention
• Interpleader Class Action

Question 3

What is a counterclaim?

Answer 3

Claim against π filed with the responsive pleading (answer) 1) Compulsory CC– arises from same T/O as π’s claim MUST be filed with ∆’s answer or else waived – cannot sue on it in separate case Not waived if ∆ moved to dismiss w/o answering→ if granted, ∆ can still bring action against π in separate case 2) Permissive CC – NOT from same T/O so may assert here or a separate case. **REMEMBER: a ct must be smjx over claim!!→ look to diversity, alienage, FQ first - THEN try supp jx Supp jx okay for comp. CC even if less than $75k (maybe o.k. for permissive if has “loose connection w/ original claim”)

Question 4

What is a crossclaim?

Answer 4

Claim against a ∆co-party MUST arise from same T/O as the underlying action You do NOT have to file a crossclaim or risk waiver (NEVER compulsory) **REMEMBER: a ct must be smjx over claim!! → look to diversity, alienage, FQ first - THEN try supp jx

Question 5

What is a impleader?

Answer 5

∆ joins a third-party defendant (TP∆) b/c TP∆ might be liable to the defending party for the claim against the defending party (e.g. indemnity; contribution) ∆ has right to implead w/in 14 DAYS after serving answer but after that need Ct. permission Need pjx over TP∆ π & TP∆ can assert a claims against each other IF same T/O **REMEMBER: a ct must be smjx over claim!! → look to diversity, alienage, FQ first - THEN try supp jx

Question 6

What is a intervention?

Answer 6

Intervention= absentee wants to join a pending suit Can choose whether to intervene as a π or ∆& the court can realign her if she came in on the wrong side. Application to intervene must be “timely” TYPES 1) Intervention of right – must show that absentee’s interests may be harmed if she is not joined & not adequately represented now 2) Permissive intervention - A’s claim or defense & the pending case have at least one common question Court has discretion to allow intervention **REMEMBER: a ct must be smjx over claim!! → look to diversity, alienage, FQ first - THEN try supp jx

Question 7

What is a intervention?

Answer 7

Intervention= absentee wants to join a pending suit Can choose whether to intervene as a π or ∆& the court can realign her if she came in on the wrong side. Application to intervene must be “timely” TYPES 1) Intervention of right – must show that absentee’s interests may be harmed if she is not joined & not adequately represented now 2) Permissive intervention - A’s claim or defense & the pending case have at least one common question Court has discretion to allow intervention **REMEMBER: a ct must be smjx over claim!! → look to diversity, alienage, FQ first - THEN try supp jx

Question 8

What is a interpleader?

Answer 8

Interpleader= one holding money or property (“stakeholder”) wants to force all potential claimants into a single lawsuit to avoid multiple litigation & the threat of inconsistent results Ct. may issue injunction stopping parties from litigating ownership question in another court. TYPES 1) Rule Interpleader – (1) Complete diversity (stakeholder must be diverse from every claimant); (2) AIC = $75k+; (3) regular service of process; (4) regular venue rules 2) Statutory Interpleader – (1) Minimal diversity (1 claimant must be diverse from 1 other claimant - don’t even look at the stakeholder’s citizenship); (2) AIC = $500 or more; (3) Nationwide service of process; (4) venue lies in a district where any claimant resides Easier std

Question 9

What are the reqs for a class action?

Answer 9

STEP 1: must meet the following 4 reqs (1) Too numerous for practicable joinder (2) Some questions of law or fact in common to the class (3) Rep’s claims/defenses typical of those of the class (4) Representative will fairly & adequately represent class STEP 2: must fit w/in one of these 3 types of actions (1) Prejudice - class treatment necessay to avoid harm to class members or to opposing party (numerous claimants to a fund would deplete) (2) Injunction or declaratory judgment (not damages) sought b/c class members were treated alike by the other party (e.g. employment discrim.) **(3) Damages - (i)common questions “predominate over individual questions”;and (ii) class action is the superior method for resolving the dispute (e.g. mass tort)

Question 10

What actions does a ct take in a class action?

Answer 10

1) The ct must determine “at any early practicable time” whether to CERTIFY the case to proceed as a class action 2) The ct must appt class counsel 3) In a damages type class (ONLY), the ct must notify (often by mail, paid for by class rep) all reasonably identifiable members, telling them various things, including: can opt out; binding effect of a class judgment on class members; AND can enter a separate appearance through counsel. 4) All members of the class are bound, EXCEPT those who opt out of the damage type class (NOTE: there is NO right to opt out of a “prejudice” or “injunction” class) 5) Parties can dismiss OR settle a certified class action ONLY w/ ct approval

Question 11

How do you show smjx w/ class action?

Answer 11

Needs smjx and can be based on: Fed Q Diversity (based on representative) i.e. Rep’s diverse from all ∆s (class members irrelevant) & Rep’s claim is $75k+ ——— Class Action Fairness Act – contains a grant of smjx separate from regular diversity Federal smjx if: Any class member is diverse from any ∆ (minimal diversity) 100 class members or more Aggregate amount in controversy exceeds $5M

Question 12

What is the complete diversity rule?

Answer 12

Diversity jx requires COMPLETE diversity between the ALL πs & ALL ∆s Citizenship= domicile Natural person = presencein the state at some pointPLUSintent (subjective)to make that state your permanent or fixed home Can have ONLY 1 domicile Corporation = domicile of (1) state of incorporation; AND (2) principal place of business (“nerve center”) Can have MORE than 1 domicle Unincorporated associations (partnerships, etc) = domicile of ALL states of constituent members/partners Can have MORE than 1 domicile ————— US citizen & permanent resident - citizen of state where domiciled US citizen domiciled abroad - NOT a citizen of a state (NO diversity w/ US citizen & NO alienage) NO: π (US domicile in canada) vs. ∆ (citizen of france) NO: (US domicile in canada) vs. ∆ (domicile of NY) Decedents, minors, and incompetents - look to citizenship of the person being represented (NOTthe citizenship of rep.) NOTE: Parties must be diverse when the claim is FILED IRRELEVANT if not diverse when issue arose IRRELEVENT if not diverse after case is filed

Question 13

What is the necessary amount in controversy AND how do you calculate the amount?

Answer 13

You need AT LEAST $75,000.01 NOT including interest/costs of litigation Valid unless it is “clear to a legal certainty” that P cannot recover $75k+ Ultimate recovery amount IRRELEVANT to jurisdiction (it could be $5) NOTE: if π recoveres LESS that $75k, then she MAY have to pay ∆’s litigation (even tho she won!) ———— Aggregation = π adds 2 or more claims to meet AIC If 1 π vs. 1 ∆, can be unrelated & no limit to # of claims aggregated CANNOT aggregate unrelated claims for 2+ ∆s, BUT you can for 2+ JOINT tortfeasors ———— Value of injunction (discuss both viewpts on exam): 1) Majority view (π’s viewpoint) - does conduct hurt π by more than $75,000? 2) Minority view (∆’s viewpoint) - would it cost ∆ more than $75,000 to comply with the injunction?

Question 14

What types of cases are excluded EVEN IF diversity reqs. are met?

Answer 14

Federal courts will not hear cases involving: 1) issuance of a divorce, alimony or child custody decree 2) probate of a decedent’s estate.

Question 15

What is the Erie DoctrineAND how does it work?

Answer 15

RULE: “In DIVERSITY CLAIMS (or supp jx claims), federal court must apply state substantive law” STEP 1: If federal law on point & directly conflicts w/ state law →apply fed. law as long as it is valid NOTE: FRCP are ALWAYS applied STEP 2: No federal law on point: ask if state law is one of the following→ apply it, if so Elements of a claim/defense SOLs Rules for tolling SOL Conflict (or choice) of law rules STEP 3: if not valid per STEP 2, ask: Would ignoring state law be outcome determinative? YES →apply state law Balance of state and federal interests in having their rule applied Is there a risk of forum shopping by applying federal law

Question 16

What is the well-pleaded complaint rule?

Answer 16

Well-pleaded complaint rule – complaint on its face, w/o extraneous material, must ENFORCE a federal RIGHT π’s claim must “arise under” federal law (e.g. Fed. Cons, legislation) Exclusive federal jurisdiction in patent, BK cases Ex – RR gives Gomer a lifetime free pass but then says he can’t use it b/c federal statute prohibits it. Gomer sues, saying federal statute does not apply. NO federal jurisdiction b/c he is not suing to enforce a federal right – he is suing to not enforce the statute.

Question 17

How is pjx assessed in fed cts?

Answer 17

Same as w/ NY state ct. See NY Practice flash cards

Question 18

What is removal?

Answer 18

∆ (and ONLY ∆)can remove to federal courtIF case could have been filed in Fed. Ct. (diversity, alienage, FQ) A “one way street”→ ∆ can only remove TO fed ct, never FROM (if improper, a fed judge will remand) π can NEVER remove based on ∆’s counterclaim (as if he is now ) All ∆’s MUST agree to removal PURE DIVERSITY CASE: ∆ CAN’T remove IF: (i) any ∆ is a citizen of the forum; OR (ii) tries to remove more than 1 yr after case was filed in state ct (unless there is some bad faith by π) Waiver of Removal Rights A ∆ who files a permissive counterclaim in STATE court probably waives the right to remove; BUT A ∆ who files a compulsory counterclaim in STATE court - probably doesn’t waive right.

Question 19

What is the procedure for a properremoval?

Answer 19

1) ∆ must remove within 30 DAYS of service of the first removable pleading on ∆ If NEW ∆ is joined, the “clock starts anew w/ ∆2” 2) ∆ must… File notice of removal in federal court, setting forth grounds of removal, signed under Rule 11; Attach all documents served on ∆ in the state action; Send a copy to all adverse parties;AND Then file a copy of the notice of removal in state court 3) Removal is to a federal district court empracing the state ct where filed (BK state ct→EDNY) 4) If removal was procedurally improper - π must move to remand to state court within 30 days of removal BUT, if there is no smjx, π can move to remand anytime

Question 20

What are the 2 kinds of cases that can be heard in fed ct?

Answer 20

1) Diversity of citizenship= Diverse citizenship (State A vs. State B) + Amt in controversy ($75k) Includes Alienage jx (State A vs. Country B) 2) Federal question = claim based on federal law/constitution

Question 21

What is supplemental jx AND when can it be used in fed cts?

Answer 21

Once case is in fed. ct. (DIVERSITY or FED Q)→allows fed ct. to hear claims over which it has no INDEPENDENT basis of SMJ. TEST = target claim must share a “common nucleus of operative fact”(i.e. from same “trxn or occurance”) with the underlying case (irrelevant if claim involves different ∆) In a PURE DIVERSITY case, a π cannot use supplemental jx to overcome a LACK of diversity, BUT…can use to overcome lack of AIC In a FED Q case, a lack of diversity does NOT matter; can use supp jx EVEN on a state law claim If the ∆ brings a claim, it does NOT matter (only binding on the π) π (NY) sues ∆ (NY) for (1) violation of fed antitrust laws, and joins a trxnly related claim for (2) violation of a STATE antitrust law→π can bring BOTH claims under supp jx (even the state antitrust case) NOTE: Ct. has discretion NOT to hear supp jx claim IF Fed. Q. dismissed early State law claim is complex; OR State law claim would predominate

Question 22

Which federal court must the case be filed in?

Answer 22

RULE: π may lay venue in any district where: either ALL ∆s reside; OR If ∆’s don’t SHARE a district, BUT are from the SAME state→ can lay venue in the distict where ANY of them live “Residence” → humans “reside” in their domicile; corporations “reside” in all districts that can get pjx over corp a substantial part of the claim arose Make sure to discuss BOTH ways to lay venue

Question 23

How can venue be transfered?

Answer 23

Can only transfer to a district court that has proper venue and pjx over the ∆ (w/o waiver by D) 1)If venue in original forum is proper→ may transfer to another federal district court based on (1) convenience of parties or witnesses (“center of gravity”); OR (2) interests in justice Ct. applies the choice of law rules of the original court, even if π initiated the transfer. 2) If venue in original forum is improper→ court may transfer in the interests of justice OR dismiss

Question 24

What is service of process?

Answer 24

Delivering to ∆: (1) a SUMMONS (formal notice of suit and time for response); AND (2) copy of the COMPLAINT Needs to be served w/in 120 DAYS after filing case (OTHERWISE, case is dismissed w/o prejdice unless π shows good cause) Can be served by any NON-PARTY who’s 18+ Method = any method allowed by (i) FCRP [personal service (delivered to ∆ in person; or substitute service (left w/ someone of suitable age/discretion who resides at usual abode) or agent service (service ∆’s agent)]; (ii) state law (NY); OR (iii) the law of the state in which service is effected ∆ can waive service by sending in waiver form thru mail Even tho ∆ waived formal service, he HASN’T waived pjx defense If ∆ fails (without good faith) to return waiver form, SHE has to pay for service that π has to NOW effect A fed ct in NY can serve process OUTSIDE NY only if a NY state ct could also (i.e. it has pjx)

Question 25

Who is entitled to a jury AND how is that right secured?

Answer 25

Right to jury trial in Fed. Ct:7th Am. preserves it in actions at LAW, but not in suits at EQUITY IF both → jury determines fact issues underlying law claim but not equity claim. NOTE: 7th Am. does not apply in state courts. Selecting the jury:each side has unlimited strikes of potential jurors for cause (e.g., bias, related to a litigant) AND has 3 preemptory strikes,which MUST use in race/gender neutral way (this is state action) Must demand jury trial in writing no later than 14 DAYS after service of the last pleading raising a jury-triable issue

Question 26

What is a motion for judgment as a matter of law (JMOL)?

Answer 26

Exceptional order, the effect of which is to take the case away from the jury. Brought when the OTHER side has been heard: ∆ can move at the close of π’s evidence and again at the close of all evidence π can move at the close of all evidence. Standard for granting the motion= reasonable people could NOT disagree on the result Ct. will view evidence in light most favorable to nonmoving party.

Question 27

What is arenewed motion for judgment as a matter of law (RJMOL)?

Answer 27

AFTER jury returns verdict & ct. enters it, losing party makes renewed motion & if granted results in judgment for him (w/o a new trial) Must move w/in 28 DAYS after entry of the judgment. Standard= reasonable people would not disagree on the result (i.e. jury reached a conclusion reasonable people couldn’t have reached) Ct. views evidence favorably to nonmoving party Prerequisite: Must have made a motion for judgment as a matter of law at the close of all evidence – IF you did not you cannot enter a renewed judgment (it’s WAIVED)

Question 28

What is a motion for a new trial?

Answer 28

Situation: Judgment entered, but judge concludes that errors at trial require a new trial. Must move w/in 28 DAYS after entry of the judgment. Examples of grounds: Prejudicial (not harmless) error at trial makes judgment unfair (wrong jury instruction, wrong evidentiary ruling) New evidence that could not have been discovered in time for trial Prejudicial misconduct of party or juror (e.g., juror made indpt investigation of accident scene) Judgment is against the weight of the evidence, showing serious error of judgment by the jury. NOTE: granting new trial is less radical than RJMOL, since it results in starting over.

Question 29

What are the 2 ways a defending party can respond to a complaint?

Answer 29

Under FRCP 12, a defending party may respond in one of 2 ways (by motion or by answer) no later than 21 DAYS after service of process on her Answer is a pleading: ∆ (1) responds to allegations of the complaint (admitting, denying, etc); AND (2) raise affirmative defenses Motions are NOT pleadings: they ask the court to do something (e.g. dismiss the case)

Question 30

What are the 7 defenses that can be raised in EITHER the answer or a motion?

Answer 30

1) Lack of smjx3 2) Lack of pjx1 3) Improper venue1 4) Insuffient process (a problem w/ the docs)1 5) Insufficient service of process1 6) Failure to state a claim for which relief can be granted2 7) Failure to join an indispensible party2 ———————– 1These defenses MUST be the FIRST Rule 12 response (motion or answer), or they will be WAIVED 2These defenses can be raised for the first time ANY TIME thru the trial 3This defense can NEVER be waived (i.e. can be raised any time, even on appeal)

Question 31

What are the reqs for a complaint?

Answer 31

Complaint must contain: 1) Stmt of smjx 2) Short/plain stmt of the claim, showing entitled to relief; AND Need not be made w/ great specificity or particularity→ JUST need to put the otherside on “notice” EXCEPTIONS: these 3 three topic req specificity/particularity (more facts): Fraud Mistake Special damages 3) Demand for judgment (does not LTD what can be recovered)