Federal Civ Pro Rules

Question 1

Federal Civil Procedure

Answer 1

Topics

I. Jurisdiction and Venue

II. Applicable law

III. Pre-trial Procedures

IV. Jury Trials

V. Motions

VI. Verdicts and Judgments

VII. Appealability and review

Question 2

Jurisdiction

Answer 2

Jurisdiction is the authority to hear a case and render a binding judgment. In order to decide a case, a federal court must possess (1) subject matter jurisdiction over the dispute and (2) personal jurisdiction over the parties. (3) In addition, e defendant is entitled to proper service of process and notice.

Subject matter jurisdiction refers to whether a court has the power to decide the kind of controversy involved. Federal courts possess subject matter jurisdiction over (1) Federal questions and (d) cases involving diversity of citizenship. SMJ cannot be waived and can be raised at any point. [See following slides and for PJ]

Service of process considerations: (1) issuance by court (2 - 4) personal service on individual, service on corporation officer or agent. service on foreign D under int’l convention, law, in person, or by certified mail (5) must serve w/ in 90 days (6) service by non party US citizen over 18 (7) D should waive unless good cause shown (8) due process requires method reasonably calculated to give notice and opportunity to be heard

*

Question 3

Federal Question Jurisdiction

****

Answer 3

Federal question jurisdiction requires that an “actual case or controversy” i_nvolving federal law exists_ between the parties. For a case or controversy to exist, the plaintiff’s complaint must state on its face a claim or cause of action involving federal law (the well-pleaded complaint rule**)

• Plaintiff is Master of Claim (and can avoid Fed jur if she doesn’t plead a fed question)
• Existence of a federal defense is insufficient

Question 4

Diversity of Citizenship jurisdiction

****

Answer 4

Diversity subject matter jurisdiction exists if: (1) opposing parties are citizens of different states at the time the complaint is filed*** and (2) the amount in controversy exceeds $75,000 excluding interest and costs.

(1) Citizenship

Complete Diversity of Citizenship**** must exist. All plaintiffs must be citizens of different states than all the defendants.

Individual’s citizenship is equivalent to domicile** (state where party lives and intends to remain indefinitely)

• executor deemed to have same domicile as decedent.
• Trustee in own name citizen ship is Trustee’s domicile
• Corporation** has citizenship in both: (1) state of incorporation and state where it has its principal place of business or “nerve center” (where direct operations)

Question 5

Diversity of Citizenship - Amount in controversy****

Answer 5

Plaintiff must demand required amount in controversy (AIC) - court accepts unless legal certainty insufficient

Aggregation:

• Plaintiff can aggregate unrelated claims against same defendant or joint tortfeasors
• Multiple plaintiffs cannot aggregate against same defendant

Counterclaims:

• Compulsory - arises out of same transaction or occurrence, NEED NOT MEET AIC
• Permissive - does not arise out of same transaction, MUST MEET AIC

Question 6

Supplemental Jurisdiction**

Answer 6

Supplemental jurisdiction extends to claims that are so related to claims in the action with original jurisdiction that they form part of the same case or controversy, meaning they share common nucleus of operative fact”

• Rule 14 Exception - if SMJ is based on diversity alone, cannot add supplemental claims that would defeat diversity.

Question 7

Removal**

Answer 7

Removal is the process of moving a case from state to federal court by a defendant (don’t have to file motion)

A case can be removed if:

• subject matter jurisdiction exists (i.e. it could have been filed in federal court)
• ALL defendants agree to remove it
• grounds to remove are included in at least one of P’s claims and are not based on a defense or counter claim.

Fraudulent joinder - of D by P to defeat diversity, if no chance prevail against D. Can remove.

Note - a Plaintiff can avoid removal by not pleading a federal claim, not adding diverse D and pleading less damage than 75,000.

Process

• removal notice must be filed w/in 30 days of service of complaint or new issue.
• Automatically granted, D has thirty days from point removable to file for remand to state court.
• Ct must remand state claims with no jur; order NOT appealable.
• D Answer: 21 days from complaint service or 7 days from filing notice of remand

Question 8

Personal Jurisdiction

Answer 8

Ct must possess (1) grounds for PJ (below) and (2) must satisfy STATE long arm statute*

1. Transient presence*
2. Domicile* - residency plus intent to stay indefinitely. Forum state law governs
3. consent - e.g. in contract
4. appearance - unless object to PJ
5. minimum contacts**** - a person may possess sufficient minimum contacts with a forum state such that requiring them to appear and defend in court will not offend traditional notions of fair play and substantial justice.

Question 9

minimum contacts**** basis for personal jurisdiction

Answer 9

a person may possess sufficient minimum contacts with a forum state such that requiring them to appear and defend in court will not offend traditional notions of fair play and substantial justice.

1. General jurisdiction** - contacts so continuous and systematic ct has PJ over claims unrelated to forum activity. (Look at whether website active or passive)
2. specific jurisdiction** - sporadic contacts has pj over cause of action related to activity
3. Purposeful availment** - of benefits of jur by D (e.g. advertising)
4. Stream of commerce** - ct may examine foreseeability of product presence in forum.
   
   1. Cts split - Sct majority: “foreseeability plus” - assess fair play and subt. justice. Awareness alone not enough (WW Volks). D must purposefully direct activity.
   2. Reasonableness** would D reasonably anticipate suit in forum under circs.

Question 10

Venue***

Answer 10

Venue is the location in which a judicial proceeding takes place. Venue is “proper”: (1) in D’s residence (2) where a substantial part of the actions or missions giving rise to the claim occurred or where most of the property is located or (3) in a fallback venue if no other venue is proper.

Ct also has venue in a removed case in the district where the state court sits (can be anomalous)

Where venue is improper, D may move to dismiss case or transfer or file forum non conveniens.

Transfer** to another court where action could have been brought can be granted on grounds of: (i) venue improper or (ii) another venue is more convenient to parties and witnesses and it promotes interests of justice

FNC doctrine allows court to dismiss case w/o prejudice where venue more convenient and interest justice served better in state or foreign court.

Ct (1) TRANSFERS if dif, fed ct available or (2) grants FNC if state/foreign ct. better per ^ Can xfer or FNC even if venue proper in original court.

Venue objection is waived if not timely.

Question 11

II. Applicable law - Fed or State

Answer 11

Erie doctrine** (Diversity cases)

1. a federal court applying state law (diversity cases) must follow state common law. (there is no federal common law of state law). Federal procedural law applies (FRCP and Fed. R. Evidence)
2. Choice of law rules of state where fed ct sits apply (to avoid forum shopping)
   
   1. where there has been a xfer of venue, apply COL rules of original court.

Courts applying federal law (either state or federal) apply federal common law.

Question 12

III. Pre trial procedures

Answer 12

1. Injunctions and declaratory judgment
2. Pleadings and amended supplemental proceedings
3. Rule 11
4. Joinder of Parties and Claims
5. Discovery, Disclosure and sanctions
6. Adjudication without a trial
7. Pretrial conference and order

Question 13

Non - permanent injunctions

Answer 13

Temporary restraining order** A P can obtain a TRO on an ex parte basis for up to 14 days (or longer on a showing of good cause):

(1) immediate and irreparable injury by verified complaint or affidavit (sworn)
(2) that P has made efforts to notify D and
(3) providing security to court sufficient to compensate adverse party in event TRO wrongful

Preliminary injunction** can be entered prior to final determination on (1) notice on adverse priority and opportunity to be heard. Ct considers (1) irreparable harm (2) likelihood to suceed on the merits (3) harm to other interested ptys (4) whether adverse to public interest

Question 14

Permanent injunction and declaratory judgment

Answer 14

Permanent injunction can be granted after full trial on showing: (1) irreparable injury to P (2) threatened injury to P outweighs harm to D and (2) injunction would not be adverse to public interest

Declaratory judgment - sets forth courts opinion regarding parties rights under law or an instrument (e.g. contract). (E.g. can ask court if an act would breach a k)

• any person with interest in property or whose rights at law may be impacted my bring
• declaration can be affirmative or negative and has force of a final judgment,
• ct renders opinion declaring rts but doesn’t order relief

Question 15

Pleadings and Amended and Supplemental pleadings**

Answer 15

counterclaims* - countersuit by D v P from same Tr or Oc. Compulsory or permissive.

cross claims* - claim against a co party arising from same t_ransaction or occurrence_

transaction or occurrence*** factors include: whether (ii) issues of fact and law are nearly identical, or (ii) evidence identical (iii) logical relnship between claim and compuls. cc or x-claim (iv) res judicata would bar later suit on compuls. cc or x-claim

Question 16

amendment of pleadings

Answer 16

A party may amend once as a matter of right within 21 days of serving a pleading. If pleading requires an answers may amend earlier of 21 days receipt of service of (i) responsive pleading or (ii) motion to dismiss, definitive statement or strike 12(b),(e),(f)

Otherwise a party may amend only by leave of court or written consent of adverse party, leave must be freely given when justice so requires. Injustice includes - bad faith, undue delay, repeated failure to cure defects, undue prejudice to adverse party or futility.

Relation back doctrine* - (i) new claims arising out of same trans or occurrence wlll be treated as if filed w/ original pleading (ii) new parties added (e.g. after SOL tolls) if new party (1) had notice and (2) knew they would have been served but for mistake

Question 17

Rule 11**

Answer 17

An atty of record must sign every pleading.

They make representation: (1) no improper purpose (e.g. , delay, raise cost) (2) legal grounds exist for claims or non-frivolous argument to change law (3) there is (or likely to) evidentiary support of factual allegations (4) denials are warranted on ev. or based on reasonable lack of information or belief.

Can be filed on atty motion (after adverse party fails to cure violation on 21 days notice) or by court on own initiative can enter order requiring party to correct or show cause why not a violation.

Sanctions can be directive, penalty to court, order to pay adverse party atty fees and cost incurred as result violation

Question 18

Joinder of Claims* and parties*

Answer 18

Joinder refers to addition of parties that are beyond scope of initial pleadings such as complaint and answer. There must be independent SMJ or joinder fails**

Joinder of claims* - must have SMJ and PJ.

Compulsory claims from the same transaction or occurrence must be joined or they are barred by res judicata.

Permissive claims may be joined, and there is great discretion of P whether to do so, but if not joined, they are not barred. Nor are permissive counterclaims.

Joinder of Parties* - Compulsory joinder of:

1. necessary parties: required for complete relief to be accorded. Join if feasible
2. indispensable: parties - necessary for action to proceed. Ct looks at prejudice to absentees, adequacy of relief to parties

Question 19

Miscellaneous Joinder concepts

Answer 19

Intervention* - procedure to allow third party to participate in order to protect their interest.

Third party practice* - defending party (3PP) may bring a complaint against third party (3PD)

• impleader - D makes a claim for some sort of 3P derivative or secondary liability (e.g indemnity, surety, subrogation)
• interpleader - allows party to avoid multiple liability by requiring one or more claimants to assert their respective claims in one suit. (e.g. bailee of 1 coat, insurer)

Question 20

Class actions*

Answer 20

To bring a class action, plaintiffs must satisfy:

1. numerosity - number of members makes joinder impractical
2. commonality - common qs of law and fact
3. typicality - claims of representatives typical of class (e.g. arise same event or all based on common legal theories)
4. adequacy of representation - by representative and class atty
5. Maintenance - of Class action allowed where risk of inconsistency and class questions predominate over individual claims

A plaintiff must give notice, but where impossible, need not be actual

Question 21

Discovery, Disclosure and Sanctions***

Answer 21

Discovery is the process for gathering information (potential evidence in preparation for trial. A party may serve discover requests on parties and non-parties.

Discovery is a tool for parties to obtain evidence relevant to teh case. the scope of discovery is broad. A party may discoer information or facts reasonably calculated to lead to relevant evidence. Therefore, the scope of discovery is broader than the scope of admissible evidence because it includes information that may reasonably lead to discovery of admissible information. A party cannot discover privileged information.

A deposition is a form of testimony from a sworn witness prior to trial without presence of judge. Attorneys should still make proper objects for the purpose of excluding answers at trial. If an attorney does not make an objection to question or answer, it is considered waived.

If an attorney wishes to admit the objected to question, the judge will determine whether the attorneys objection should be sustained or overruled. At deposition, because there is no judge present to determine the objection, the witness still must answer the question because all relevant information or facts reasonably calculated to lead to relevant evidence is discoverable

Discovery methods include:

1. depositions - legal proceeding in which party or atty questions witness under oath
   
   1. Corporate deposition* - notice must specify matters; corp designates respondent w/ knowledge or who should reasonably know
   2. _Subpoena duces tecum*_directs W produce certain docs for advance review
   3. _Depo b/4 action filed*_can be requested w/ verified petition in county W lives
   4. Deposition can be used at trial* if admissible under FRE to (i) impeach W (2) of agent against corporation (iii) if W unavailable(dead, outside subp. power)
2. interrogatories** written qs to party that must be answered in writing under oath which can be used as evidence at trial. Absent court permission, limited to 25 including subparts. Answers must be served w/in 30 days.
3. requests for admission* - written statement served to another party asking they admit or deny truth of facts. Failure to respond can be deemed admission.
4. request for production* - party may request other party produce or make available for inspection or copying certain designated docs, electronic info or other tangible items. Can serve request to produce on non party by subpoena duces tecum. 30 days to respond. Must allow inspection or produce copies, if w/hold must state reason. Can produce electronic docs in form ordinarily maintained (or reasonably usable form)

Question 22

Required Disclosures (Rule 26)

Answer 22

1. Initial disclosures - persons likely to have info, copy or description relevant docs, elec info or tangible items, computation of damages sought and supporting docs, insurance agreements under which ins. co may be liable
2. Disclosure of expert testimony - identity of expert, report (where provided) or summary of opinion and facts.
3. pretrial disclosures - contact info witnesses who testify at trial or by depo (including transcript), documents that may be offered as evidence

Question 23

Discovery Scope and limits

Answer 23

Scope of discovery* is broad and traditionally construed liberally. Party is entitled to any information relevant to party’s claims provided it is (1) not privileged or atty-work product and (2) information is proportional to needs of case. Factors to consider for proport. include: importance of issues in case and of disc. to resolving, amt in contro, parties relative access to info and resources, whether burden/exp. discovery outweighs benefit.

Attorney-work product is not discoverable and may be tangible or intangible:

(1) materials prepared in anticipation of imminent litigation or trial** (not those in reg. course) (Exception for substantial need and undue hardship w/o materials)
(2) Experts: Atty work product also protects expert trial prep, regardless of form (reports, atty comms with expert). Can obtain

Question 24

Supplementing disclosures/Required Initial Disclosures

Answer 24

Party has a duty to supplement* or correct discovery when party learns response is incomplete or incorrect or if new information comes to light (except depos_)_.

Required initial conference* - to plan discovery process (timing, subjects, electronic info, privilege or trial prep protection, changes to Rule limits on discovery, protective/sched orders to be entered by court. Party cannot seek discover before conference.

Sanctions for discovery vios* - for unreasonable conduct. Failure to preserve electronic info: if (i) prejudice to other party, ct. may order measures to cure to extent of prejudice or (2) if intentional can (i) presume (or instruct jury to) info favorable to requestor (iii) def. j or dismiss

Question 25

Pretrial conference*

Answer 25

Ct may order parties to appear for a pre-trial conference. Objectives*: expedite disposition, establish ct control, discourage wasteful pretrial activities, improve trial thru prep, facilitate settlement. Court has great discretion and appearance of counsel is mandatory. Counsel should have authority to make stipulations, settlements and discuss settlement. Ct should hold final conference as close to trial as possible, to plan including admission of evidence. After, ct issues order outlining actions taken, only modified to prevent subst. injustice.

Question 26

IV. Jury Trials

Answer 26

Right to a jury** - D possess right to jury trial for actions at law where damages exceed $20. (7th Amend Constitution, FRCP 38). Right is “inviolate”. Waived if not filed within 14 days last motion on claim.

No right to jury trial for equitable claims.

• Jury selection
• Parties are entitled to jury selected at random from fair cross section of community.
• Grounds for disqualification (6): Non citizen, < 18, illiterate, not fluent, mental or physical infirmity, criminal record.
• I_nvalid grounds:_ race, color, national origin, sex, religion or economic status.
• Voir Dire initial qs to determine constitutional (e.g. fair x-section) or statutory quals and suitability. Can be done by judge or lawyers, if judge, must allow suplmtal qs
• Challenges to prospective juror**:
  
  • For cause (unlimited): Unqualified or biased relationship (eg. ee)
  • Preemptory (3 total): no reason stated, e.g. unfavorable opinion
• Jury composition* - 6 to 12 jurors, who all must participate in verdict unless excused for good cause (illness, family emergency, misconduct).

Question 27

V. Motions

Answer 27

A motion is an application to a court for an order directing something to be done. It can be oral or written.

• Pretrial Motions
• Motion to Dismiss** 12(b) - attacks the sufficiency of a pleading, usually complaint or claim. If granted, a case can be dismissed, w/ or w/o prejudice to correct & refile
  
  • Defenses**
    
    • Waived** if not asserted in first responsive pleading: lack of PJ, improper venue, insufficient process or service of process
    • Non-Waivable defenses** lack of SMJ, failure to state a plausible claim (mere possibility not enough), failure to join indispensable pty.
      
      • context specific analysis based on ct judgment & experience whether P has pled enough facts (assumed true) to reasonably infer D liable.
    • Waiver of defenses*** - some defenses can be waived if not raised in responsive pleading, but the prior defenses can be raised in a motion. Such a motion must be filed before a responsive pleading.

Question 28

Pretrial Motions continued

Motions directed to the face of the pleadings

Answer 28

1. Motion for more definite statement - if vague, unclear (e.g. pro se)
2. Motion to strike - redundant, immaterial, impertinent or scandalous matters
3. Motion for judgment on pleadings 12(c)*- filed AFTER pleadings are closed. If matters outside pleadings are presented, court treats it as motion for SJ FRCP 56

Question 29

Motion for Summary Judgment***

Answer 29

Any party may move for summary judgment to obtain a judicial judgment and avoid a trial under FRCP 56. A MSJ may be granted if movant shows no genuine issue of material fact exists*. A MSJ can be granted if the facts that cannot be genuinely disputed can only lead to a decision in favor of the movant.

• A genuine issue of material fact e_xists if a jury could return a verdict for other party based on evidence presented_.
• a material fact is one that is relevant to an element of claim or D whose existence would impact outcome of case
• all inferences must be drawn in favor of non moving party.

Procedure* - Party moves for SJ and attaches supporting docs, asserts no genuine dispute of material fact, or if has burden of proof at trial, must have evidence sufficient for JMOL/DV. Other party can object facts not admissible, ct can consider evidence not cited. Any affidavits must be based on personal knowledge and state admissible ev, show W is competent to testify. If party fails to support or address facts, ct can provide opportunity to correct, consider them undisputed, grant SJ, or other proper order. MSJ can be granted in whole or part, reasons should be on record. If not fully granted, can issue order establishing facts. Movant has up t_o 30 days after close of disc._ to file MSJ.

Question 30

Motion for Judgment as a Matter of Law (formerly Directed Verdict)**

Answer 30

Judgment as a matter of law** (formerly directed verdict) can be filed after the close of evidence but before the case is submitted to trial on the basis that the evidence is insufficient to support opposing party’s claim. JMOL should be granted if there is no legally sufficient evidentiary basis for the jury to find in favor of non movant.

Ct. cannot substitute for jury. Can’t consider credibility of Ws, weigh evidence.

Failure to introduce evidence to support or contradict not dispositive (issue remains for jury.)

Timing: before submission of case to jury. Preserves possible future post trial renewed JMOL (former judgment notwithstanding the verdict) b/c gives other side opportunity to correct deficiency before case is submitted to jury

Question 31

Post Trial motions*

Answer 31

1. Renewed motion for JMOL (above) w/in 28 days after judgment
2. Motion for a new trial* requires fundamental error affecting trial outcome or its fairness such as irregularity, misconduct, new evidence, legal error, inadmissible evidence, instruction error or excessive damages. Grant if jury reached seriously erroneous result or verdict is a miscarraige of justice. Unlike JMOL, ct. can grant even if substantial ev. to support verdict, ct can weigh and not consider in light most favorable to D. should NOT Grant on basis verdict against weigh of evidence alone. Can be granted for juror bias if not disclosed during VD, but not typical
3. Rule 60 motion* - relief from judgement if result of mistake or excusable fault as. clerical mistakes can be corrected by court at any time on motion or on ct own. Ct can relief from final judgment

Question 32

VI. Verdicts and Judgments**

Answer 32

A default judgement** is a final judgment in a case entered without determination on the merits. if a Defendant fails to timely respond to complaint or otherwise defend in a case, a plaintiff can first make an appeal to the clerk to f_ile an entry for default_ with an affidavit or other proof of failure to respond. Clerk reviews the file and then can enter default. Damages may be supported by an affidavit if certain, or a hearing if not. A defendant can move to set aside a default for good cause or reasonable excuse for failure to appear or facts in support of a meritorious defense. Default judgements can be set aside if judgement void for mistake, new evidence, fraud or misrepresentation satisfaction or release. Lack of jurisdiction can void a judgment.

Second, the court becomes final when the court enters a final judgment

Default judgments have preclusive effect if the court has subject matter and personal jurisdiction, In diversity cases, it possesses same preclusive effect as under state law. Default as a sanction should only be issued in most extreme cases. Ct decision to enter default judgment is reviewed under abuse of discretion.

Involuntary dismissal - can be done sua sponte or on motion if PLAINTIFF fails to prosecute or violates the rules. Involuntary dismissal acts as adjudication on merits.

Question 33

Jury Verdicts/Judicial findings and conclusions

Answer 33

** A minimum of 6 and maximum of 12 jurors must participate in a verdict, and unless parties stipulate, it must be unanimous.

There can be general and special verdict

Judicial findings and conclusions**: A judge makes findings of fact and conclusions of law when exercising judicial duties. In a jury trial, the jury is the finder of fact and decides the questions of law. In a bench trial, judge has both roles Judges must set forth findings of fact separate from conclusions of law

1. An appeals court will only set aside a judicial finding of fact if clearly erroneous.

Question 34

Res Judicata: Claim and Issue Preclusion

Answer 34

Res judicata** is a general term that refers to all of the different ways in which a prior judgment or determination could have a binding effect on subsequent litigants. It includes both claim preclusion and issue preclusion.

Claim preclusion forbids relitigating entire claims, which were, or could have been, litigated in prior actions. Modern view is that a “claim” includes all of parties rights to remedies against another party w/r/t the same transaction from which the action arose. It requires: (1) same parties in both suits (2) prior judgment rendered by ct competent jur (3) final judgment on merits and (4) same cause of action (most tested). Transaction is deemed to be part of same cause of action if it arose from same transaction. May courts apply res judicata broadly to bar every claim arising from same transaction if it could have been raised with reasonable diligence.

A person is NOT bound by a judgment in a litigation they were not a party**, with a few exceptions such as privity (ee/er), but not close family relationship, consent, legal rlnsp (e.g. successive property owners), etc.

Question 35

Issue Preclusion (collateral estoppel)

Answer 35

Issue preclusion prevents a party from re-litigation issues that have been previously litigated and determined. in a prior action. Under the modern view, the parties need not be the same but the party to be precluded had to have a full and fair opportunity to litigate the issue .

The requirements for asserting Issue Preclusion (collateral estoppel) are:

1. a valid and final judgment was rendered in a prior action
2. an issue of fact was actually litigated, determined and essential to jdgment
3. the same issue arises in a subsequent action
4. party to be precluded had full and fair opportunity to litigation it

Not starred but on sample exam.

Question 36

VII Appealability and Review

Answer 36

Final Judgment Rule** only final judgments can be appealed. (Ct can sever claims and enter final judgment on some so that they are appealable). Appeals from most pre-trial orders are considered interlocutory and are not appealable.

Collateral order exceptions** the determination of some questions that are collateral to other rights asserted in an action may be too important to be deferred for appellate review until after the whole case is adjudicated. Criteria are: (1) the court order must fully dispose of a disputed question (2) the q_uestion must be completely collateral to the cause of action_ and (3) it must “i_nvolve an important right that would be lost, probably irreparably_” if review had to wait until after a final judgment

Question 37

Scope of Review**

Answer 37

An appellate court can only review matters presented on the trial record. A party must take steps in order to preserve trial error for appeal.

Preservation of error** Generally a party must object to a matter they consider erroneous to preserve the matter for appeal, contemporaneously and with particularity as to grounds. There is an exception for plain error so obvious that parties failure to notice would seriously affect fairness and integrity of judicial proceedings. Harmless error can not be ground for appeal. If would not impact result, error is harmless.

Standards of review** Appellate review of (1) i_ssues of law is de novo (2) admission of evidence is abuse of discretion_ (3) of findings of fact in bench trial is clearly erroneous.