FEDERAL CIVIL PROCEDURE Flashcards
1
Q
What’s the Civ Pro issue checklist?
A
1. Right court?
• personal jx
• subject matter jx
• venue
2. Leanring about the case (pre-trial)
• service of process
• pleadings
• discovery
3. Complex cases
• joinder, etc.
4. Adjudication
• pretrial
• conferences
• trial
5. Appellate review
6. Preclusion
•claim & issue preclusion
2
Q
Personal jurisdiction is the court’s power over the _______ whereas subject matter jurisdiction is the court’s power over the ________.
A
parties; case
3
Q
Personal jurisdiction concerns one question:
A
Can the P sue in this state. Not concerned with what court within that state–that’s subject matter jx.
4
Q
2 step analysis to determine whether there is personal jurisdiction:
A
- satisfy a statute (state long arm statute) AND
2. satisfy the Constitution (due process)
5
Q
Is the analysis for personal jurisdcition different depending on whether the case will be filed in federal or state court?
A
No. Same in both.
6
Q
Most states have a series of statutes that allow p.j. in different situations, for example, served process in the state, domiciled in the state, conduct business in the state, etc.
A
*CA statute reaches teh constituional limit. So just mention long-arm and do constitutional test.
7
Q
The constitutional analysis for personal jurisdiction asks what question?
A
Whether the defendant has such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?
8
Q
The easy or traditional cases that are almost guaranteed to meet the constitutional test for personal jurisdiction are:
A
- D is domiciled in the forum
- D consents
- D served process in teh forum (not trkced)
9
Q
Where the contact between the D and forum state (for PJ) is not clear, what are the three headings to consider?
A
- Contact
- Relatedness
- Fairness
10
Q
In PJ C analysis what is contact and what factors are considered?
A
There must be relevant contract between D and the forum state.
- The contact must result from purposeful availment.
• D’s purposeful/ voluntary act
• D must reach out to the forum
• Consider whether D benefited from roads,
etc. while there. - Foreseeability
• It must be foreseeable that D could get sued
in this forum.
11
Q
In PJ C analysis what is relatedness and what factors are considered?
A
For relatedness we ask whether the P’s claim arose from D’s contact with the forum.
If yes: specific personal jurisdiction: even if the D does not have a great deal of contract w/ CA, might still uphold jx.
If no: JX is ok only if the court has general personal jx. To have general personal jx, the D must essentially be at home in the forum.
• person = domiciled
• corporation= where formed, or where it has its primary place of business. (just sales/ purchases are not enough)
12
Q
A D who is essentially at home in the forum can be sued there for a claim that arose anywhere in the world; that is ______________. But a D who is not essentially at home in teh forum can only be sued there for a claim arising from those activities; that is ____________.
A
general personal jurisdiction; specific personal jurisdiction
13
Q
In PJ C analysis what is fairness and what factors are considered?
A
Whether jurisdiction in the forum would be fair or reasonable under the circumstances. Consider:
- Convenience: forum is OK unless it puts D at a severe disadvantage in the litigation. Tough standard. Look for:
• where the witnesses are
• far from D’s home?
• tough to get evidence there? - State’s interest to provide a forum for its citizens.
- Plaintiff’s interest to sue at home if injured, e.g.
14
Q
Recap of C analysis for PJ:
A
If doesn’t meet traditional situations that pass, then evaluate:
1. Contacts
• Purposeful availment
• foreseeability
2. RElatedness
• specific pj
• general pj
3. Fairness
• Convenience: D at severe disadvantage?
• state's interest
• plaintiff's interest
15
Q
An interactive website can be ______ ________ for PJ purposes.
A
purposeful availment
16
Q
Federal courts can hear only certain types of suits. What are the two main types?
A
diversity of citizenship and federal question
17
Q
For diversity of citizenship cases, there are 2 requirements:
A
- the case is either
• between citizens of different states, OR
• between a citizen of a state & a citizen of a
foreign country (alienage) AND - the amount in controversy exceeds $75,000
18
Q
What is the complete diversity rule for diversity jx?
A
no diversity if any P is a citizen of the same state as any D.
19
Q
How do you determine the citizenship of a natural person who is a US citizen?
A
citizenship is the state of her domicile.
Domicile=
- presence in state, AND
- intent to make it her permanent home
20
Q
How do you determine a natural person’s (US citizen) domicile?
A
- presence in state, AND
2. intent to make it her permanent home
21
Q
Can a person have more than one domicile at a time?
A
Nope. Only a citizen of one state.
*Corporation can be a citizen of multiple states.
22
Q
At what point in time is a party’s domicile determined?
A
At the time the case is filed. If move afterwards, won’t destroy diversity.
23
Q
For a corporation, citizenship =
A
- state where incorporated AND
2. the one state where the corporation has its principal place of business.
24
Q
EXY Corp (inc. in AZ and PPB in CA) sues D (CA). Is there diversity?
A
Nope. Corporation is a citizen of 2 states here: both AZ and CA.
25
What is the corporation's principal place of business?
Where the managers direct, control, and coordinate corporate business. "nerve center" HQ
26
How do you determine citizenship for an unincorporated business? (LLC, Pship, etc)
Use the citizenship of all members (includes general and limited partners). Dont' care about where formed or PPB.
27
A partnership has partners who are citizens of CA, AZ, UT, and NV. What is the pship's citizneship?
all 4 states.
28
How do you determine citizenship for decedents, minors, or incompetents?
Use their citizenship, not the citizneship of their representative.
29
An executor (CA), on behalf of the estate of Elvis (TN), sues D (CA). Is that ok?
Yes, because Elvis (TN) has diversity from D (CA). Executor's citizenship doesn't matter.
30
What is the rule for amount in controversy?
P's good faith claim must exceed $75,000. (not counting interest on the claim or costs of litigation).
Exceed! Not exactly $75,000.
31
P sues for exactly $75,000. Ok for diversity jx?
Nope. Must exceed $75,000.
32
Suppose P sues for more than $75,000 but ultimately wins less than $75,000. Is diversity jx ok?
Yes. What P actually wins is irrelevant to jx. Whatever P claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than $75,000. Rare.
33
What is aggregation for purposes of diversity jx?
Aggregation means adding 2 or more claims to mee the amount in controversy requirement.
34
What are the aggregation rules for diveristy jx?
1. Can aggregate claims of 1 P v. 1 D.
P sues D for breach of contract $40,000 and for $50,000 for a totally unrelated claim. Can aggregate and meet requirement with $90,000.
2. Cannot aggregate if two claims but not 1 P and 1D.
P1 sues D for $50,000. In the same case P2 sues D for $40,000. Cannot aggregate.
3. Can aggregate for joint tortfeasors.
So P sues X, Y, and Z for a total of $75,001. Totally ok.
35
How do you determine the amount in controversy if the P is seeking equitable relief?
There are 2 tests. If either is met, most courts say ok. *Use both on the exam
P sues D for an unjunction to tear down part of his house that blocks P's view.
1. P's viewpoint: does the blocked view decrease the value of P's property by more than $75,000?
2. D's viewpoint: would it cost D more than $75,000 to comply with the injunction?
36
Even if diversity requirements are met, federal courts will never hear actions involving (4)
1. issuance of divorce
2. alimony
3. child custody decree
4. probate an estate
37
For federal question cases,
the claim must arise under federal law.
Is the P enforcing a federal right?
38
Sharon Stone hires DE to build a house. DE fails to build, but argues that federal environmental statute prhibits building where Sharon want to build. Sharon sues DE for specific performance and alleges that the federal statute does not apply. Is there FQ jx?
No. Sharon is not enforcing a federal right. DE is using the federal law as a defense basically. For FQ, the claim must arise under federal law.
39
Diversity and FQ can get a ______ into federal court. Once it is there, though, there may be additional ____ in that case. For _________, test whether it meets ______ or ________. If so, it can come in. If not, see ________ jx.
case; claims; every single calim, diversity; FQ; supplemental
40
What is supplemental jurisdiction?
SJ only works after a case is already in federal court (through diversity or FQ). Now there is an additional claim that does not meet FQ or diversity. SJ might allow that claim to come in anyway.
41
What is the test for supplemental jurisdiction?
The claim we want to get into federal court must share a "common nucleus of operative fact." with the claim that invoked federal smj.
* This test is always met by claims that arise from the same transaction or occurrence as the underlying claim.
* Limitation= In a diversity case, P cannot use supplemental jx. to overcome a lack of diversity.
42
What is the very important limitation to supplemental jurisdiction?
In a diversity
43
P (Utah) sues D-1 (CA) and D-2 (Utah) on state-law claims in one case. The claims arise from the same transaction. The claims exceed $75,000. The claim by P against D-1 meets diversity of citizenship jurisdiction. The claim by P against D-2 does not. Can the claim by P against D-2 invoke supplemental jurisdiction?
No because P can never overcome a lack of diversity in a diversity case.
44
P (CA) sues D (CA) for (1) violation of federal antitrust laws, and joins a transactionally related claim for (2) violation of state antitrust laws. OK? Claim (1) is OK because it!s a FQ. But claim (2) is not FQ (because it!s based on state law) and does not meet diversity. Can claim (2) invoke supplemental jx?
Yes, because the limitation does not apply to a FQ case. FQ got the main claim into federal court, then want to join a state claim. Basis is FQ.
45
P-1 (CA) and P-2 (CA) sue D (AZ) on state-law claims. P-1's claim is for $100,000. P-2's claim arises from the same transaction, and is for $50,000. P-1's claim meets diversity. But P-2's claim does not, because even though citizenship is OK, the claim does not exceed $75,000. Can the claim by P-2 invoke supplemental jurisdiction?
Yes, because you can use supplemental jurisdiction to overcome an amount in controversy problem in a diversity case.
46
Give the solid gold review for supplemental jurisdiction:
A non-federal, non-diversity claim can be heard in federal court if it shares a common nucleus of operative fact with the claim that invoked F SMJ. (T/O always works) UNLESS
1. asserted by a plaintiff
2. in a diversity of citizenship case AND
3. is against a citizen of the same state as the P.
47
For supplemental jurisdiction, the court retains discretion to not hear the supplemental claim if:
1. the federal question is dismissed early in the proceeding.
2. the state law claim is complex
3. state law issues would predominate.
48
What is removal?
A D sued in state court might be able to remove the case to federal court. Removal is a one-way street it transfers a case ONLY from a state trial court to a federal trial court. If removal was improper, the federal court can remand the case to state court.
49
When does a D need to remove?
Within 30 days of service.
*Get a new 30 days if D2 gets served later.
50
Who can remove?
The defendant must remove, never the P, even if D files claim against P in the same case.
If 2 D's, all Ds who have been served with process must be joined and must be a unanimous decision to remove.
51
P sues D-1 and D-2 on June 1. D-1 is served with process on June 1. She does not remove within 30 days. D-2 is served with process on August 1. Can she and D-1 now remove?
Yes. You get a fresh 30 days after D2 is served.
52
What kind of case can be removed?
| Give general rule and 2 exceptions.
Generally, any case that would meet the requirements for diversity of citizenship or federal question.
Exceptions: (only in diversity cases)
1. No removal if D is a citizen of the forum AND
2. No removal more than 1 year after the case was filed in state court
53
P (Georgia) sues D-1 (NY) and D-2 (Alabama) in an Alabama state court for $500,000. Can D-1 and D-2 remove?
No, because D-2 is an in state defendant. If any D is in-state, no removal.
54
If a D removes, what federal court does the case go to?
ONly to the federal district embracing teh state court.
55
What is the procedure for removal?
1. D files notice of removal in federal court, stating grounds of removal
2. signed under Rule 11
3. attach all docs served on D in state action;
4. copy to all adverse parties
5. file copy of notice in state court
56
If removal was procedurally improper, P moves to remand to state court; she must do so within _____ days of removal. But if there is no federal smj, P can move to remand _____. In other words, there is no time limit on raising lack of __________.
30; anytime; subject matter jx.
57
D who files a ______ counterclaim in state court probably waives the right to remove. Filing a ______ counterclaim there probably does not waive the right to remove.
permissive; compulsory
58
What is the Erie doctrine?
In a diversity case, the federal court must decide which law to apply (state or federal). In diversity cases, the federal court must apply state substantive law.
59
What are some examples of clearly substantive issues?
1. elements of a claim/ defense
2. statute of limitations
3. rules for tolling statutes of limitations
4. conflict (or choice) of law rules.
60
What are the 3 tests that can be used to determine whether a federal judge can ignore state law in a diversity (Erie) case?
1. Outcome determinative: would applying or ignoring the state rule affect outcome of the case? If so, probably substantive, should use state law.
2. Balance of interest: does either federal or state system have a strong interest in having its rule applied?
3. Avoid forum shopping: if the federal court ignores state law on this issue, will it cause parties to flock to federal court? If os, use state law.
61
What is the basic idea of venue?
SMJ told us we can take a case to federal court. Venue tells us exactly which federal court.
62
P may lay venue in any district where:
1. all defendants reside
* Special rule about diff. districts/same state
2. a substantial part of the claim arose.
63
What is the special rule in regards to venue?
Generally P may lay venue in the district where all defendants reside, but in cases where all Ds reside in different districts of the same state, P can lay venue in the district in which either/ any of them resides.
E.g. Wayne Newton (D. Nev.) sues D-1 (N.D. Ca.) and D-2 (C.D. Ca.). SPECIAL RULE in cases where all defendants reside in different districts of the same state, plaintiff can lay venue in the district in which any of them resides. So here P could sue both Ds in N.D. Ca. OR C.D. Ca.
64
Where do Ds reside for venue purposes?
1. human: in district where domiciled
| 2. businesss: in all districts where subject to personal jurisdiction
65
A federal district court may ___ the case to another federal distrct court. It can only transfer to a district wherer the case _______, meaning to a ______ venue that has _______ over the D.
transfer; could have been filed; proper; personal jurisdiction
66
If venue in original district is proper, that court has ______ to transfer to another district, based on ____________ and the ____________.
discretion; convenience for the parties & witnesses; the interests of justice
67
In deciding whether to transfer venue where it has discretion to do so, the court will look at what factors?
Public & private factors showing that the other court is teh center of gravity
Public: things like what law applies, what community shoudl be burdened with jury service, keeping local controversy in the local court
Private: convenience--where are the witnesses & evidence.
*Transferee court applies the choice of law rules of the original court.
68
If venue in original district is improper, court
may transfer in the interests of justice or dismiss.
69
Like transfer, there is another court that is far more sensible than the present one. But for _________, the court does not transfer to that court it, _____________. Why?
forum non conveniens; dismisses or stays the case
Because transfer is impossible--the more convenient court is in a different judicial system (e.g. a foreign country)
70
The decision in a forum non conveniens case is almost never granted if ________.
P is a resident of the present forum.
71
For a forum non conveniens dismissal or stay, the other court must be ________. P's recovery in most foreign courts will not be as large as in American courts. Does that matter?
Adequate
Not determinative. All we care about is that P gets a fair day in court. Doesn't guarantee that P gets the same remedy she would have gotten here.
72
What 2 things make up process?
Must give notice to D.
1. Must deliever to D a summons (formal court notice of suit and time for response) AND
2. a copy of the complaint
73
P must serve process within _____________ or case dismissed _______ prejudice.
120 days of filing case; without
74
Who can serve process?
any nonparty who is at least 18 years old.
75
How is process served?
1. Personal service: personally given to D anywhere
2. Substituted service: Ok if (1) it's D's usual abode and (2) serve someone of suitable age and discretion who resides there
3. Service on D's agent: Process can be delivered to D's agent. OK if receiving within the scope of the agency
4. State law: federal court can use methods of service permitted by state law of the state where teh federal court sits or where service is effected.
5. waiver by mail: mail to D a copy of the complaint and 2 copies of a wiaver form, with prepaid means fo returning form. If D executes and mails form to P w/in 30 days, D waives formal service.
• P files waiver at court. effective at filing
• If D doesn't waive and had no good reason not to, pays cost of service
76
D is served for a federal civil case while instate to be a witness or party in another civil case. Ok?
No she is immune from service.
77
Rule 11 requires attorney (or pro se party) to ___________, except _______, which are treated by another rule.
sign all papers; discovery documents
78
When you (as the attorney) sign a document, you are certifying to the best of your knowledge and belief after reasonable inquiry that:
1. the paper is not for an improper purpose
2. legal contentions are warranted by law (or nonfrivolous argument for law change)
3. factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation.
79
Continuing certification means
that you make the rule 11 certification every time you present a position to the court (e.g. when you later advocate a position taken in the document).
80
Sanctions may be levied against attorney, firm, or party. Are rule 11 sanctions supposed to punish or deter a repeat of bad conduct?
*they are discretionary
They are supposed to deter--always say this on the exam.
81
If another party violates Rule 11, can a party move for sanctions right away?
No. You serve the motion on other parties but cannot file it. The party in violation has 21 days (safe harbor) in which to fix the problem and avoid sanctions. If she doesn't do so, then motion can be filed.
82
If a court raises a rule 11 issue on its own, sua sponte, does safe harbor rule apply?
Nope. Just for motions by a party.
83
What are the requirements for a complaint?
You must allege facts supporting a plausible claim.
1. statement of grounds for subject matter jx
2. short and plain statement of the claim, showing entitled to relief
3. demand for relief sought
84
Generally a complaint requires that you allege facts supporting a plausible claim. What matters must be pleaded with even more detail? Must be pleaded with _____ or ________.
particularity; specificity
1. fraud
2. mistake
3. special damages
85
Rule 12 requires D to respond to the complaint in one of 2 ways (1) __________ or (2) ______. To avoid default, when must you do one of these 2 things?
by motion; by answer
within 21 days after service of process
86
Motions are not _______; they are ______.
pleadings; requests for a court order
87
What are the Rule 12(b) defenses? How can they be raised? Which are waivable? What does it mean if a defense is waivable?
1. lack of SMJ
2. lack of PJ
3. Improper Venue
4. Insufficiency of process (prob. w/ papers)
5. Insufficient service of process
6. Failure to state a claim
7. Failure to join indispensable party
Can be raised either by motion or answer.
Waivable:
1. Lack of PJ
2. Improper Venue
3. Insuff. process
4. Insuff. service
Waivable= must be put in the first Rule 12 response (motion or answer) or else they're waived.
88
(1) P sues D. D files a timely motion to dismiss for defective service of process. The court denies the motion, after which D files and serves her answer, asserting as defenses lack of personal jurisdiction and improper venue. OK?
No. She has waived both defenses by not including them in her first rule 12 response.
89
At trial, D moves to dismiss for failure to join an #indispensable party and for failure to state a claim on which relief can be granted. OK?
Yes, that's fine. These 2 12b defenses can be raised anytime through trial. Not waivable
90
After trial, D asserts for the first time that the court lacks subject matter jurisdiction. OK?
Yes. lack of subject matter jurisdiction is very special and is never waived. Can raise anytime.
91
The answer is a _______ whereas a motion is not.
pleading
92
The answer must be served within _________. But if D made a Rule 12 motion, and it is denied, she must serve her answer ______________.
21 days of service of process
within 14 days after court rules on motion.
93
What do you do in the answer?
1. Respond to allegations of complaint
• admit
• deny
• state you lack sufficient information to A or D
• *If you don't deny, could constitute an admission on any matter except damages.
2. Raise affirmative defenses
•Must plead affirmative defenses or you risk
waiver.
3. Counterclaim?
4. Crossclaim?
94
In his complaint, P alleges "D was intoxicated while driving his car." In his answer, D said "P has no proof that I was intoxicated." Did D make a mistake?
Yup, sure did. He has admitted intoxication because he did not deny it.
95
What is a counterclaim?
What are the 2 types?
A claim against an opposing party. In federal court, part of D's answer. Two types of counterclaim:
1. compulsory: arises from the same T/O as P's claim. Must be filed in the pending case or it is waived. Don't use it, you lose it.
2. Permissive: does not arise from the same T/O as P's claim. Can file it with answer in this case or assert it in a separate case.
96
Lois and Meg, each driving her own car, collide and each is injured. Lois sues Meg to recover for personal injuries. Meg answers and defends the suit and then institutes her own action against Lois to recover for her personal injuries. Case dismissed. Why?
* If Meg moved to dismiss and it was granted, can Meg still bring claim?
Because this is a mandatory counterclaim for Meg. She lost the ability to bring the claim when she didn't include the counterclaim in her answer to Lois's complaint.
* Yes, if you never had to answer in the case, then your counterclaim was never made compulsory.
97
If a counterclaim is procedurally ok in federal court, then what do you do?
Assess SMJ over the counterclaim. If no diversity or FQ, try supplemental jx.
98
What is a crossclaim?
A claim against a co-party. It must arise from the same T/O as the underlying action an dis always permissive.
99
An example of crossclaim/ counterclaim:
P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising
from a car collision (Draper was driving Sterling's car). Sterling doesn't know who's
at fault between the two drivers, but knows his car (worth $200,000) is totaled. Sterling wants to recover $200,000 for the property damage. (No federal question anywhere in this hypo.)
1. Can Sterling file a counterclaim against P?
2. Can Sterling crossclaim against Draper?
1. Yes. If he wants to file a counterclaim, he must doeso here in his answer. It is a compulsory counter claim because it arises from the same T/O as P's claim.
SMJ= diversity
2. Yes, Sterling may crossclaim against. Draper. It is against a co-party and arises from the same T/O.
SMJ?: No diversity or FQ.
Supplemental? Yes. 1. Meets the test of common nucleus of operative fact and 2) not subject to the limitation because although this is a diversity case, the crossclaim is being brought by a D, not P. Doesn't apply unless P brings supplemental claim.
100
P has a right to amend pleadings ________ within ___________________.
D has a right to amend ______ within __________.
once; 21 days after D serves her first Rule 12 response
once; 21 days of serving his answer
101
If there is no right to amend the pleadings (time ran out) what should you do? How will court decide (factors)?
Seek leave of court
It will be granted if justice so requires.
Factors:
• delay
• prejudice
• futility of amendment
102
What is variance?
When the evidence at trial does not match what was pleaded.
103
P sues for breach of contract; D answers. At trial, P introduces evidence that D
assaulted him. D doesn't object. Evidence of assault is admitted into evidence (because D didn!t object). At or after trial, can P move to amend the complaint to conform to the evidence?
Same case, but D does object. What then?
Yes. We want the pleadings to match what was tried. Amend to conform to the evidence. Formality.
Evidence of assault inadmissible because it is at variance with the pleadings.
104
What is the idea of relation back for amended pleadings?
Means that you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.
105
To join a new claim and amend the pleading, the amendment will relate back if:
To change a defendant after the statute has run, will relate back if:
Join a new claim:
1. Will relate back if they conern the same conduct, transaction or occurrence as the original pleading.
To change a D: Will relate back if:
1. it concerns the same conduct, transaction or occurrence as the original
2. the new party knew of this case within 120 days of its filing; and
3. she also knew that, but for a mistake, she would have been named originally
106
P is injured in a Sam's Store. He sues "Sams Store, Inc." before the statute runs and has process served on Sam within 120 days. P should have sued "Samco Ltd." Sam is president of Samco Ltd. and is authorized to receive service. P discovers the problem after the statute runs, and seeks leave to amend to name Samco Ltd. Will P be able to amend and satisfy statute of limitations?
Yes, this satisfies the requirements for changing a D and having the change relate back.
1. same conduct T/O
2. party knew of the case within 120 days/ filing
3. but for a mistake Sam knew Samco Ltd. would have been named originally
107
In discovery what must be produced even though no one asks for it?
Required disclosures:
1. initial disclosures: Unless court order or stipulation differs, in most cases within 14 days of the Rule 26(f) conference, must
• identify all persons and
• give copies (or description) of documnets or electronically stored information
• likely to have discoverable information that
• the disclosing party may use to support its claims or defenses, computation of dmages, and insurance
2. Experts: must identify:
• experts who may be used @ triail
• written report containing opinions, data used, qualifications, compensation, etc.
3. Pretrial: No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition.
108
Discovery tools cannot be used until after ________, unless _______ or _______ allows.
26(f) conference; court order; stiputation by parties
109
All discovery tools can be used to get information from _______, only some can be used to get information from _________.
parties; Non-parties.
110
What are the common discovery tools?
Which can be used to get information from non-parties as well as parties?
1. Depositions (NP) NP should be subpoenaed
2. Interrogatories (P only)
3. Requests to Produce (NP w/ subpoena)
4. physical/ mental exam (need court order)
5. Request for admission (P only)
111
What is a subpoena duces tecum?
requires the deponent to bring material (e.g. documents) with her.
112
You cannot take more than _____ depositions or depose the same person _____ without court approval or stipulation. Deposition cannot exceed one day of ______ hours unless court orders or parties stipulate.
10; twice; 7
113
What is a deposition?
* questions can be wrtten or oral (if written, read by court reporter)
* deponent gives sworn oral answers to questions by counsel
* recorded by sound or video or stenographically and transcript can then be made
114
What are interrogatories?
* Questions propounded in writing to another party, to be answered in writing under oath.
* Must respond with answers or objections w/in 30 days.
* Can say you don't know only after reasonable investigation
* cannot serve more than 25 including subparts without court order or stipulation
115
What are requests to produce?
* Requests to another party (or to non-party w/ subpoena) requesting that she make available for review and copying various documents or things, including electronically stored information, or permit entry upon disignated property for inspection.
* Must respond within 30 days of service, stating that the material will be produced or stating objection.
116
What are the rules about a physical or mental examination in discovery?
•Only available through court order on showing that party's (or person in party's control, e.g., parent in control of child) health is in
actual controversy and good cause(i.e., you need it and can!t get it elsewhere).
* Party seeking the order chooses the suitably licensed person to perform the exam.
* Person examined may obtain copy of report simply by asking for it, but by doing so waives his doctor-patient privilege re reports by his doctors re that condition.
117
What is a request for admission?
* A request by one party to another party to admit the truth of any discoverable matters.
* Often used to authenticate documents; the propounding party will send copies of the documents to be authenticated with the request. •Must respond within 30 days of service.
* The response is to admit or deny; can indicate lack of information only if indicate you!ve made a reasonable inquiry.
* Failure to deny tantamount to admission; can amend if failure not in bad faith.
118
Every discovery request and reponse is signed by counsel certifying
1. it is warranted
2. not interposed for improper purpose
3. not unduly burdensome
119
What is the duty to supplement in FRCP?
After your response, if things change, you must supplement your response.
120
Generally, what is discoverable?
Anything relevant to a claim or defense where relevance is a broader definition than at trial. Relevant = anything reasonably calculated to lead to teh discovery of admissible evidence.
121
In discovery, can you discover communications protected by privilege?
Nope.
122
Work product or __________ materials is material _______________. Generally it is ______ from discovery.
trial prep materials; material prepared in anticipation of litigaiton; protected
123
Howell sues Skipper for losses sustained when a vessel sank. Skipper, fearing the suit, had hired Shore, an attorney, who interviewed Gilligan, a witness to the sinking. Shore (a) had Gilligan write a statement regarding the incident; (b) made a note that based on what Gilligan says, there appears to be no defense; and (c) made a note that Gilligan is stupid and would make a lousy witness at trial.
Discoverable?
All 3 are work product so generally, not discoverable. But,
(a) (witness statement) is discoverable if Howell shows (1) substantial need AND (2) it is not otherwise available.
(b) and (c) are aboslutely protected because they are:
(1) mental impressions
(2) opinions
(3) conclusions
(4) legal theories
124
Some work product is discoverable if (1) substnatial need and (2) not otherwise available, but work product is absolutely protected if it is:
1. mental impression
2. opinion
3. conclusions
4. legal theories
125
If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection _____ and particularly describe the materials. You can do this in a __________. What is contained in this doc?
```
expressly
privilege log
PL includes:
• document by date
• author
• recipient
• privilege, etc.
```
126
The court will get involved in discovery in 3 main situations:
1. protective order: responding party seeks protective order because request is overburdensome, involves trade secrets, etc.
2. partial violation: receiving party answers some and objects to others. If objections not upheld, partial violation.
3. Total violation: receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production. Total violation.
127
How do discovery sanctions work?
1. Party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement.
If partial violation: 2 steps:
1. can get order compelling the party to answer the unanswered questions plus costs of bringing the motion.
2. If the party violates the order ocmpelling him to answer, then RAMBO sanctions plus costss and could be held in contempt for violating a court order.
If total violation: 1 step: RAMBO + costs No need to get order compelling answers first--go directly to RAMBO:
RAMBO sanctions (choices available to judge):
• establishment order (establishes facts as true)
• strike pleadings of the disobedient party (as to issues re the discovery)
• disallow evidence from the disobedient party (as to issues re the discovery)
• dismiss plaintiff's case (if bad faith shown)
• enter default judgment against D (if bad faith shown).
128
What are the joinder rules for joining proper parties?
Can sue together as co-plaintiffs or sue multiple defendants if claims:
1. arise from the same T/O
2. raise at least one common question
*Then assess subject matter jurisdiction.
129
Some non-parties must be forced to join the case. These are called ____ and _____ parties. An absentee is necessary if absentee meets any of these tests:
necessary & indispensable
1. Without A, the court cannot accord complete relief among existing parties (worried about multiple suits)
2. A's interest may be harmed if he is not joined (practical harm); or
3. A claims an interest which subjects a party (usually D) to multiple obligations.
* Then analyze whether joinder is feasible. Feasible if:
1. there is PJ over him and
2. joining him will not destroy diversity.
If feasible, bring into the case. If not, either proceed without Bob or dismiss the entire case.
Consider:
(a) is there an alternative forum available (maybe a state court)?
(b) what is the actual likelihood of harm to Bob?
(c) can the court shape relief to avoid that potential harm to Bob?
130
What is impleader?
Where a defending party wants to brin gin someone new--a 3rd party defendant. TPD may be liable to D for P's claim against D.
Best examples= indemnity & contribution
131
There is a right to implead within _____ days after serving ______; after that need court ok.
14; answer
132
Steps for impleading:
1. file 3rd party complaint naming TPD
2. serve process on the TBD (must have PJ over TPD)
3. Assess subject matter jx.
• Diversity or FQ? then ok.
• If not, supplemental?
133
After TPD is joined in an impleader, can the P assert a claim against the TPD?
Can the TPD assert a claim against P?
Yes, if the claim arises from the same T/O as the underlying case.
Yes, if the claim arises from the same T/O as the underlying case.
134
What is intervention?
Absentee wants to join a pending suit. She chooses to come in either as a P or as a D. The court may realign her if it thinks she came in on the wrong side. Application to intervene must be timely.
Intervention of right
Permissive Intervention
135
What is intervention of right?
Absentee's interest may be harmed if she is not joined and her interest is not adequately represented now. (Like test #2 for necessary parties).
136
What is permissive intervention?
Absentee's claim or defense and the pending case have at least one common question. Discretionary with court; ok unless delay or prejudice.
137
T/F Most courts do not allow supplemental jurisdiction if the intervenor is not diverse from the party on the other side in a diversity case.
True. Must have SMJ to have an intervention.
138
What is an interpleader?
When one holding property forces all potential claimants into a single lawsuit to avoild multiple litigation and inconsistency.
139
How are rule interpleader and statutory interpleader different? Similar?
Similar: in both, court can enjoin claimants from suing elsewhere.
Different standards for diversity, amt. in controversy, service of process & venue.
1. Diversity of citizenship
• rule: stakeholder must be diverse from
every claimant.
• statute: one claimant must be diverse from
one other claimant (stakeholder's cit. doesn't
matter).
2. Amount in controversy
• rule: Must exceed $75,000
• statute: $500 or more
3. Service of process
• Rule: regular lawsuit
• statute: nationwide service (no pj issues over
claimants in the US).
4. Venue
• rule: regular case
• statute: district where any claimant resides
140
Insco (inc. in Del.; ppb NY) holds a fund of $100,000 under a life insurance policy. After the insured dies, potential claimants to the fund are Bonzo (NJ), Gonzo (MN) and Nonzo (NY). Insco wants to avoid being sued on the policy in
three different actions. What can it do? How?
Interplead.
•Here the could be no rule interpleader because no diversity. Stakeholder is not diverse from every claimant. But statutory interpleader would be OK. For diversity under the statute, OK if one claimant is diverse from one other claimant. And all other requirements are met too.
141
Before a court will certify the case to proceed as a class action, what must you show?
1. Initial requirements (show all)
• numerosity: too many class members for
practicable joinder
• commonality: there is some question of law
or fact in common to class
• typicality: Rep's claims/defenses are typical
of those of the class; and
• rep is adequate: rep will fairly and
adequately represent the class.
2. Case must fit within one of 3 types:
• Prejudice: class treatment necessary to
avoid harm either to class members or to
party opposing class. An example is many
claimants to a fund. Individual suits might
deplete the fund, leaving some without
remedy.
• Injunction/ Declaratory Judgment (Not
damages) sought because class was treated
alike by other party: E.g. EM discrimination
• Damages: (1) common questions
predominate over individuatl questions and
(2) class action is the superior method to
handle the dispute. E.g. mass tort: 80
peopel injured.
142
If the court certifies the class, it must:
1. define the class and the class claims, issues or defenses
| 2. appoint class counsel
143
In the Type 3 class, the court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. The notice tells them various things including:
Who pays to give this notice?
(a) they can opt out;
(b) they'll be bound if they dont; and
(c) they can enter a separate appearance through counsel.
Class representative pays to give the notice.
*Notice not required in Type 1 or Type 2 cases.
144
Who is bound by a class judgment?
All class members, except those who opt out of a Type 3 class action. No option to opt out in Type 1 or 2.
145
Can the parties dismiss or settle a certified class action?
Only w/ court approval. And court gives notice to class members to get their feedback on whether the case should be settled or dismissed.
146
How do you determine subject matter jurisdiction for a class action?
For FQ fine.
Diversity: consider only the rep. Rep must be diverse from all Ds. Rep's claim must exceed $75,000.
147
How does CAFA, the Class Action Fairness Act change SMJ for a class action?
This grants subject matter jurisdiction separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action (of at least 100 members) if any class member (not just the representative) is of diverse citizenship from any defendant and if the aggregated claims of the class exceed $5,000,000. It makes it easier for interstate class actions to go to federal court. There are complicated provisions to ensure that local classes (where most class members and the primary defendants are citizens of the same state) do not stay in federal court; they get dismissed (or, if they were removed from state court, are remanded to state court).
148
What are the possible adjudications available pretrial?
1. voluntary dismissal
2. default & default judgment
3. failure to state a claim
4. summary judgment
149
What is voluntary dismissal? When is it available?
May be allowed on court order (and P have to pay D's costs). But sometimes P has a right to dismiss simply by filing a written notice of dismissal.
150
P sues D but, before D answers, files a written notice of dismissal. OK?
Yes. P may voluntarily dismiss ␣without prejudice␣ before D serves her answer or a motion for summary judgment.
But if P dismisses the second case by written notice, it is with prejudice, so the claim cannot be reasserted. Even if first was in state court, if second is in federal court, then dismissed w/ prejudice.
151
What is the difference between default and default judgment?
default= a notation by the court clerk on the docket sheet of the case. A claimant gets a default by showing the clerk that D has failed to respond within 21 days after being served with process. D can respond anytime before the default is entered.
Default judgment= Getting the default does not entitle the claimant to recover. She needs a judgment to enforce and recover money or other remedies. The clerk of court can enter judgment if:
- - D made no response at all
- - The claim itself if for a sum certain in money;
- - Claimant gives an affidavit (sworn statement) of the sum owed; AND
- - D is not a minor or incompetent.
But if any of those four is not true, the claimant must go to the court itself (the judge, not the clerk) for the judgment. The judge will hold a hearing and has discretion to enter judgment. D gets notice of that hearing only if she made some appearance in the case.
152
What is required to get defualt judgment from the clerk of the court? (skipping going to the judge?) What needs to happen to get default judgment if one of the requirements is not met?
- - D made no response at all
- - The claim itself if for a sum certain in money;
- - Claimant gives an affidavit (sworn statement) of the sum owed; AND
- - D is not a minor or incompetent.
But if any of those four is not true, the claimant must go to the court itself (the judge, not the clerk) for the judgment. The judge will hold a hearing and has discretion to enter judgment. D gets notice of that hearing only if she made some appearance in the case.
153
Default judgment cannot exceed _________ or be a ______________.
1. what the claimant demanded in her complaint.
2. or be a different kind of relief.
(This is different from a case that goes to trial, in which the claimant can recover more (and a different kind of relief) than she put in her complaint.
154
D may try to set aside a default by showing _________ and a _______. ________ usually means excusable neglect. D may try to set aside a default judgment on the same basic showing.
good cause; viable defense; good cause
155
Under FRCP 12(b)(6), D moves to dismiss for _______. It tests only the sufficiency of P!s allegations and ignores ___________. It asks what question?
failure to state a claim; legal conclusions; if these facts were true, would the P win a judgment?
156
in ruling on a 12(b)(6) motion for failure to state a claim, does the court look at evidence?
Nope. Looks at the face of the complaint and anything that the court took judicial notice of.
157
If a 12(b)(6) motion is made after the D has answered, what is it called? What is the test?
Called a motion for judgment on the pleadings.
Same test as 12(b)(6) motion.
Court still looks at allegations of fact to determine if the facts were true, would P wil a judgment? Looking for whether the facts alleged support a plausible claim.
158
For a motion for summary judgment, the moving party must show:
1. there is no genuine dispute on an issue of material fact
| 2. that she is entitled to jdugment as a matter of law
159
A party must move for summary judgment within ___ days of close of _______.
30; discovery
160
In summary judgment, can the court look at evidence?
Yes, it usually does. Usually affidavits, declarations, deposition testimony, interrogatory evidence.
The court views the evidence in the light most favorable to the nonmoving party.
161
P was hit by a car driven by D. P sues D, alleging D ran a red light while P was in the crosswalk and crossing the street on a green light. D answers and denies these allegations. D moves for summary judgment, attaching sworn statements from three witnesses saying that they saw the accident, D had the green light, and P jumped in front of D's car.
(1) In response, P relies on his complaint, which said D ran the red light. Motion for SJ granted?
(2) Instead, P responds with an affidavit from somebody who swears that he heard about the accident and was told that D ran a red light.
(3) Instead, P responds with deposition testimony from an alcoholic, drug addicted, convicted swindler who swears he saw the accident and that D ran a red light.
(1) Probably because a complaint is not evidence. No pleadings are. So based on the evidence presented, there is no dispute of fact and D is entitled to judgment.
**Only if pleadings are verified are they under oath. That's really rare. Regular pleadings are not under oath and thus are not considered evidence here.
**But pleadings might be relevant for summary judgment in this way: if D failed to deny an allegation by P, it can be treated as fact on summary judgment.
(2) Summary judgment is probably granted here too. Why? This affidavit is based on hearsay, so we ignore it.
(3) Summary judgment must be denied. WHY? The evidence for P is first-hand knowledge and creates a dispute on a material fact
162
What is a 26(f) conference?
Unless court order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses, and settlement. Must form discovery plan, including issues about how electronically stored info will be produced, and present it to court in writing within 14 days.
163
What is a scheduling order?
Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, etc.
164
What is a pretrial conference?
The court may hold ␣pretrial conferences␣ to process the case and foster settlement. Final pretrial conference determines issues to be tried and evidence to be proffered. This is recorded in a pretrial conference order, which supersedes the pleadings.
165
The final pretrial order is an important document-- it is a ______ of issues to be tried, _______ to be presented at trial, ________, etc.
roadmap; evidence; witnesses
166
Seventh Amendment (which applies ONLY in federal court (not state court)) preserves the right to jury in "civil actions at law," not in suits at equity. What if a case involves both law and equity?
1. Suppose a case involves a claim for damages (legal relief) and an injunction (equitable relief). Do we get a jury?
2. In what order will the court usually proceed?
1. Yes to decide the facts underlying the damages claim, but not the equity claim.
2. Jury issues first, then get rid of jury and try other facts to the judge.
167
If you want to assert your right to a jury trial in federal court, what are the requirements of demand?
Must demand:
1. in writing
2. no later than 14 days after service of the last pleading raising jury triable issue
168
In voir dire, there is no limit on the number of strikes _____ but each side only gets 3 ______ strikes.
for cause; peremptory
169
Peremptory strikes must be used in a ____ and _____ neutral way.
race and gender
170
We need at least ______ jurors and no more than _____.
6;12
171
What is a motion for judgment as a matter of law? When is it brought?
What is the standard for granting the motion?
Exceptional order that takes the case away from the jury.
Brought after the other side has been heard at trial.
Standard= reasonable peopel could not disagree on the result. No reasonable juror could rule in favor of opposing party. Court views evidence in the light most favorable to the nonmoving party.
172
What is a renewed motion for judgment as a matter of law?
Situation: judge did not grant motion for JMOL, and the case went to the jury. Jury returns a verdict for one party, and the court enters judgment on the basis of the verdict. Now the losing party files a renewed motion for judgment as a matter of law.
* If RJMOL is granted, the court enters judgment for the party that lost the jury verdict! Move within 28 days after entry of judgment.
* Standard: same as with motion for JMOL. (So, if granted, the jury reached a conclusion reasonable people could not have reached.)
* If you didn't move for JMOL at trial, you cannot bring the RJMOL motion.
173
What is a motion for a new trial?
On what grounds can it be granted?
1. Situation: judgment entered, but errors at trial require a new trial. Something happened that makes the judge think the parties should start over and re-try the case. Move within 28 days after judgment.
2. Grounds:
(1) prejudicial (not harmless) error at trial makes judgment unfair (e.g., wrong jury instruction; evidentiary ruling);
(2) new evidence that could not have been obtained with due diligence for the original trial;
(3) prejudicial misconduct of party or attorney or third party or juror (e.g., juror conducted independent investigation of accident);
(4) judgment is against the weight of the evidence (serious error of judgment by jury);
(5) excessive or inadequate damages.
174
Why is a grant of a RJMOL more drastic than a grant of a motion for a new trial?
An RJMOL replaces the jury verdict and picks another winner. New trial just results in a do-over, so the same party could still win.
175
What are the grounds/ timing for a motion to set aside judgment?
\Motion to set aside judgment.
Grounds
1. Clerical error --anytime
2. Mistake, excusable neglect -- reasonable time (never more than 1 year)
3. New evidence that could not have been discovered with due diligence for a new trial motion--reasonable time (never more than 1 year)
4. Judgment is void (e.g., no SMJ) --reasonable time (no maximum)
176
What is the final judgment rule?
Generally, there is a right to appeal only from final judgments. That means the ultimate decision by the trial court of the merits of the entire case. File notice of appeal in trial court within 30 days after entry of final judgment.
177
To determine if it's a final judgment, ask:
after making this order, does the trial judge have anything left to do on the merits of the case?
If he does, then not a final judgment.
178
Are the following final judgments?
1. grant of a motion for a new trial?
2. denial of a motion for new trial?
3. grant of motion to remand to state court?
4. grant or denial of renewed motion for judgment as a matter of law?
1. no--court must hold the new trial
2. yes, must appeal w/in 30 days--nothing else
3. no, by statute
4. yes. either way, final judgment
179
Interlocutory review is available in 6 main situations. What are they?
1. Interlocutory orders reviewable as of right: orders granting, modifying, refusing, etc. injunctions; appointing, refusing to appoint receivers; findings of patent infringement where only an accounting is left to be accomplished by trial court; orders affecting possession of property, e.g., attachments.
2. Interlocutory Appeals Act. Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear it.
3. "Collateral order" exception. Appellate court has discretion to hear ruling on an issue if it (a) is distinct from the merits of the case, (b) involves an important legal question, and (c) is essentially unreviewable if parties must await a final judgment (e.g., claim of immunity from suit, such as a state!s claim under the Eleventh Amendment that it is
immune from being sued in federal court. (Not just immune from liability, but immune from being sued at all in federal court.)).
4. When more than one claim is presented in a case (e.g., claim and counterclaim), or when there are multiple parties, the trial court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay.
5. Extraordinary writ. Not technically an appeal, but an original proceeding in appellate court to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only to enforce a clear legal duty.
6. Class action. Court of appeals has discretion to review order granting or denying certification of class action. Must seek review at the court of appeals (not in the trial court) within 14 days of order. Appeal does not stay proceedings at trial court unless trial judge or court of appeals so orders.
