Federal Civil Procedure Flashcards

Question

Jdx --> Forum Non Conveniens

Answer 1

If the most convenient forum is not in the US, the court cannot transfer the case, but can dismiss it without prejudice so the plaintiff can refile in the proper country. ---> This may not be in the US. --> The same factors are considered as in the transfer of venue. Note that the court, in dismissing a case under forum non conveniens, will often condition the dismissal on the D waiving any future challenges (should the case be re-filed in a different country) to the statute of limitations or other similar defenses.

Answer 2

The Rules of Decision Act states that applicable provisions of the fed USC, treaties, and constitutional statutes enacted by Congress always take precedence over state law. ---> The fed cts apply federal law when considering issues involving the USC and constitutional fed statutes.

Answer 3

In diversity cases, fed cts will apply both state and federal law; the court conducts an “Erie analysis” – 2 step process: (1) Do what Congress or the Constitution says if it is valid and on point. If a valid fed statute or USC provision is on point, the fed ct must apply the relevant provision. ----> It is irrelevant whether the provision is “substantive” or “procedural,” or whether it causes forum shopping, or otherwise seems unwise to apply. Validity: The federal statute must be valid (Constitution is per se valid). If the statute is invalid, the court ignores it and moves to Step 2. - ---> Invalidity of a statute has special application in cases involving the Federal Rules of Civil Procedure. These rules are statutes drafted by the judicial branch and approved by Congress. - ---> Congress says that a valid federal rule must “not abridge, enlarge, or modify any substantive right.” - ---> If a hypothetical rule declares that “the defense of contributory negligence shall not be valid in a federal court,” and Congress for some reason approves it anyway, the rule is invalid and should be ignored by the court. Importantly, this test is fairly easy to pass; no rule has ever been held to “abridge, enlarge or modify any substantive right.” So if you see a Federal Rule that you are familiar with, it almost certainly is valid under this test and ought to be applied. On Point ----> Ultimately a question of interpretation (2) If there is no fed statute or USC law on point, do what would avoid unfairness and forum shopping. If there is no valid federal statute or constitutional law on point, the federal court should follow its ordinary practices (whether rooted in case law, written policy, informal practice, or simply habit) UNLESS doing so would lead to: - --> a preference for one court system (state or federal) over another; or - --> fundamental unfairness. Unfairness or Forum Shopping: If Step 1 represented the entirety of the Erie doctrine, the federal judge in these cases would wear the wig in the first suit and dismiss the medical malpractice claim in the second suit. ---> After all, no federal statute or constitutional provision instructs otherwise. ---> But because of Step 2, the judge would not wear the white wig but would dismiss the medical malpractice case. ---> A finding of forum shopping will necessarily carry with it a finding of unfairness. What happened to “substance” and “procedure”? - --> Although courts still use these terms in Erie cases—and the bar examiners may as well—the doctrine does not generally demand that a law be characterized in the first instance as substantive or procedural. (A narrow exception is whether a federal rule modifies a “substantive right,” but as noted above, no federal rule has ever been held to do this.) - --> If Step 2 instructs the court to apply state law, the law is called “substantive.” - --> If Step 2 instructs the court to stick with ordinary federal practice, the practice is called “procedural.” Two rules of thumb: (1) Statutes of limitation are substantive. - --> When P sues D in a federal diversity action, P’s compliance with the statute of limitations will normally be controlled by state law. - --> That is, there is normally no federal law on point, and the application of state law is necessary to prevent forum shopping/unfairness. - --> Thus, state statute of limitations law is applied (and labeled “substantive”). (2) Choice of law rules are substantive. - --> In a federal diversity suit, Erie requires that federal courts apply the choice of law rules of the state in which it is sitting. - --> That is, there is no federal law on point and conjuring up distinctly federal choice of law rules would only encourage forum shopping. - --> Thus, such rules are properly applied in diversity cases and labeled “substantive.”

Answer 4

``` Complaints Answers to complaints Answers to counterclaims Answers to cross-claims Third-party complaints Answers to third-party complaints Replies to answers, if ordered by the ct ```

Answer 5

Complaint must contain 3 items: (1) Grounds for subject matter jdx (2) Statement of facts that are suff to show that P is entitled to relief; and - ---> SCOTUS: complaints must state facts that make the wrongdoing appear plausible, not just hypothetically possible. - ---> A P cannot guess that the D has been neg and expect to make it past the pleading stage. - ---> Moreover, in cases alleging fraud or mistake, the P must describe the alleged fraud or mistake with particularity (general allegations will not suffice). - ---> Each claim must be supported by suff law and facts (3) Demand for judgment and the relief sought - --> SP? Money?

Answer 6

A responding party must admit or deny the allegations made against it by an opposing party. - --> The party must admit those allegations (or parts of allegations) that are true, and deny others. - --> An answer must be filed w/in 21 days of service of the complaint. - --> The 21 day period does not include the date of service, but does include weekends and holidays; if the 21st day is on a weekend/holiday, answer must be filed on the next business day. - --> If there is a failure to deny any specific allegation, it is deemed admitted Waiver - --> A party must plead certain affirmative defenses in its answer or reply to a counterclaim - --> If it is not included in the answer, it is forfeited - --> Exceptions: failure to state a claim upon which relief should be granted; failure to join a necessary party; and lack of SMJ

Answer 7

A party can amend a pleading once as a matter of right. - --> The complaint can be amended within 21 days of serving the original complaint, or, if an answer or motion to dismiss has already been filed, within 21 days of that service. - --> A party can amend an answer within 21 days of serving the original answer. A party can amend with permission: - --> Permission of opposing parties - then can amend. - --> Permission of court - will consider reason for delay and prejudice (usually granted). Amendments and Statutes of Limitations (whether the amendment will “relate back”) - Whether an amendment has been filed within the statute of limitations depends on whether the amendment seeks to add a new claim or a new party. - ---> Adding new claims: The amendment is considered filed on the date that the original complaint was filed IF the new claim arises from the same transaction or occurrence as the existing claim (relation back rule). - ---> Adding new parties: Will relate back to the original filing date: (1) If the new claim arises from the same transaction and occurrence as the existing claim; (2) If the new party knew of the suit soon enough to not be prejudiced (generally during the time permitted for service of the original complaint); and (3) If the new party should have expected to be named, but-for a mistake in identity.

Answer 8

Standard of Conduct: An attorney or unrepresented party certifies that, after making a reasonable inquiry, the submission of a document to the court is based on: - ---> Good Faith: The submission is not for any improper purpose (to harass, delay, or increase the cost of litigation). - ---> Good Facts: The submission is based on evidentiary support or, if specifically noted, will likely have evidentiary support after discovery. This applies to affirmative representations of fact, as well as denials of factual allegations. - ---> Good Law: The submission is warranted by existing law or presents a non-frivolous argument for a change in existing law. Sanctions (1) How: - ---> The complaining party must first draft a motion for sanctions and serve it on the offending party. - ---> Safe Harbor: Motion filed 21 days after service. Allows a chance to withdraw/modify any alleged violation of Rule 11. (2) Nature: - ---> Goal – to deter misconduct. - ---> Ct may order monetary or non-monetary sanctions. (3) Who is subject to sanctions: - ---> Any person who has committed a violation or is responsible for a Rule 11 violation subject to sanctions. - ------------> Exception: Represented parties are not subject to monetary sanctions for violating the “good law” requirement. - ---> Attorney’s law firm must be held jointly liable, absent exceptional circumstances. Not Applicable to Discovery: - ---> Rule 11 does not apply to any discovery matter. - ---> Misconduct has discovery-specific rules.

Answer 9

The plaintiff files suit seeking injunctive relief, but can’t litigate the suit fast enough to get that relief before the defendant commits some irreversible harm.

Answer 10

Preliminary Injunction (PI): Need notice to the adverse party AND the following 5 elements: (1) Likelihood of Success on the Merits: - ---> The plaintiff’s legal claim is plausible and will likely win if litigated (law and facts are on the plaintiff’s side); (2) Irreparable Harm to the plaintiff if the PI is not granted; (3) Balance of Hardships: - ---> Whether the harm to the plaintiff is greater if the PI is denied, than the harm to the defendant if it is granted. (4) Public Interest: - ---> The court will not issue a PI that is injurious to the public interest; and (5) Payment of Security: - ---> The plaintiff must deposit enough money with the court to compensate the defendant for any losses if the suit is unsuccessful. Temporary Restraining Order (TRO) - ---> Similar to a PI – Same 5 part test as above, but: (1) TROs expire 14 days after issuance. They can be extended for 14 days upon good cause shown. (2) TRO can be ex parte. - A TRO can only be issued without notice if: (1) specific facts clearly show that immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition; and (2) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Answer 11

Multiple Claims brought by one P and one D: - --> The plaintiff can bring all claims in one lawsuit, regardless of relatedness of claims. - --> Not required to bring every claim but permitted to. - --> If a claim is related to a claim in the suit, the P must bring the claim, or it is likely precluded.

Answer 12

AKA how a sued party returns fire. Permissive Counterclaim = Claim does not arise out of the same transaction or occurrence underlying P’s claims against D. ---> D may file a permissive counterclaim but is not required to do so. Compulsory Counterclaim = Claim does arise out of same transaction or occurrence underlying P’s claim against D. ---> D must file or forfeit the claim in future litigation. Cross Claims = Filed by a party against a co-party (D1 v. D2) - --> Allowed only if it arises from the same transaction or occurrence underlying one of the plaintiff’s claims. - --> Once a related cross is filed, Rule 18 kicks in and you can then file unrelated cross-claims. - --> A co-defendant can counterclaim the cross. Compulsory/permissive rules apply; it does not have to be related.

Answer 13

Permissive Joinder Multiple plaintiffs can join one suit or multiple defendants can be sued in one suit, as long as: ---> Joined parties claim relief (if plaintiffs) or face liability (if defendants) that arises out of the same transaction or occurrence; and ---> There will arise in the action questions of law/fact common to joined parties. Mandatory Joinder Step 1: Is the absent party necessary? ---> Necessary party = Has an interest that might be impaired if left out (suing for painting back, need the guy w/ the painting); complete relief cannot be issued in the party’s absence; or if current parties would be subject to inconsistent / duplicative liability. ---> If a party is not necessary, there is no mandatory joinder. Step 2: If a missing party is necessary, can the party be joined? ---> If Yes - Court should just join them, adjudicate case, skip Step 3. ---> If No - Proceed to Step 3. -----------------> A missing party can’t be joined in federal court if the court lacks PJ over the missing party, or adding the party would destroy SMJ by destroying diversity. Step 3: If a party cannot be joined, are they indispensable? ---> The court will consider: The extent of prejudice to the missing party; whether the prejudice can be lessened by shaping the relief in a certain way; and if the case is dismissed, whether the plaintiff can find relief in another forum. ------------> If Yes – must dismiss the suit. ------------> If No – court can adjudicate the case in the party’s absence.

Answer 14

Have the other 2 guys sue each other. ---> Used when a party fears it will face multiple/ inconsistent liabilities. NOTE: if a party decides to sue a single party instead of multiple parties using an interpleader claim, the party left out may be required to join as a necessary and indispensable party or may elect to intervene in the suit on their own.

Answer 15

A defendant brings a claim against a person not already a party - --> Must allege that the third party is responsible for some/all of the liability. - ------------> Ex: contribution (claim against joint tortfeasor), indemnity (claim against insurer). - --> A defendant has the right to implead if they do so within 14 days of serving an answer, otherwise they need permission from the court. - --> After being impleaded, the third person made party may bring their own claims against others and implead others. The original plaintiff can also file a claim against the third party (impleaded defendant) if it relates to one of the plaintiff’s original claims.

Answer 16

Non-party is interested, but has not been joined. Intervention of right A party must be permitted to intervene upon timely application when: (1) The party claims an interest relating to the subject matter of the action, and (2) Without intervention, there is a risk that they might not be able to protect that interest. Permissive intervention Upon timely application and at the court’s discretion, a party may intervene with a claim or defense that shares with the main action a common question of law or fact.

Answer 17

One person (the representative) can litigate on behalf of a group (class) if: (1) A class can be formed, and (2) The action brought is proper for resolution via class action. To form a class, 4 requirements must be met: (1) Numerosity: So many claimants that joinder is impractical; (2) Commonality: Questions of law or fact common to the class; (3) Typicality: Claims are typical of class members, ensuring the representative will have an incentive to litigate in ways to protect the class; and (4) Representativeness: Representative parties will fairly and adequately protect the interests of the class. Proper for resolution via class action if: - ---> Separate actions would create a risk of inconsistent judgments or judgments would impair nonparties from protecting their interests. - ---> The opposing party has acted in ways generally applicable to the class (not likely to work if seeking $$). - ---> The court finds that common questions of law or fact predominate over individualized questions, and a class action is superior to other methods for a fair/efficient result. Additional Considerations (1) Court must have PJ over every defendant but only over the named plaintiff. (2) Judgment binds all class members unless they opt out. (3) Notice: In common-question class actions, class members must be given notice of the pendency of the suit, usually through mail or publication. (4) SMJ: When alleging a state law violation, the class can appear in federal court only if the defendants and representative plaintiffs (not all members) are completely diverse. - ---> If the class has 100 members and seeks damages over $5M, diversity is satisfied if any single member is diverse from any defendant (Class Action Fairness Act – CAFA). - ---> Jurisdiction can be established through an initial filing in federal court or through removal. - ---> Moreover, unlike ordinary removal rules, if the class has 100 members and seeks damages over $5M, removal can be made by a home state defendant and can be made without the agreement of all other defendants (CAFA).

Answer 18

Parties req'd to meet and discuss the likely content of discovery in the case and draft a discovery plan. - ---> The plan must be submitted within 14 days of the conference. - ---> The conference must be held at least 21 days before a Rule 16(b) conference is held or order is issued.

Answer 19

The court may order the parties to confer again to discuss the litigation and, in particular, the most efficient way for it to proceed and any possibilities for settlement.

Answer 20

``` Rule 16(b) requires the court to issue a scheduling order. ----> The scheduling order will dictate the schedule upon which the litigation will progress (e.g., periods within which parties can be added, motions made, etc.) and specify particular rules pertaining to discovery (e.g., the scope of discovery on particular issues). ```

Answer 21

A party is entitled to demand the discovery of any matter that is: (1) Relevant to the claim or defense of any party; (2) Not unreasonably cumulative or burdensome; and (3) Not privileged There are mandatory disclosure obligations as well as specific discovery devices that are designed to elicit info w/in the permissible scope of discovery.

Answer 22

Initial Disclosures: Within 14 days after a Rule 26 conference, must provide to all other parties: - ---> Witnesses: The name/contact information of any witness that a party may use to support a claim or defense; - ---> Documents: Copies (or descriptions) of documents, electronically stored information (ESI), and tangible objects that a party may use to support its claim or defense; - ---> Damages: Computation of damages sought and supporting documents; and - ---> Insurance Agreements: Copies of any insurance agreement that may require the insurer to pay. Expert Disclosure: At least 90 days before trial, if a party is planning to rely on expert testimony, they must disclose the name/contact info of the expert and their final report, which must include the qualifications, opinion, and information relied on by the expert. Pretrial Disclosures: At least 30 days before trial, a party must provide to all other parties: - ---> List of witnesses expected to call at trial; - ---> Witnesses that may be called if the need arises; - ---> List of witnesses whose testimony will be given through deposition or transcript; and - ---> List of documents or physical evidence they expect to present.

Answer 23

Privileged matter is not discoverable. ----> Attorney/client – Covers confidential communications between an attorney and client for the purpose of obtaining or rendering legal advice.

Answer 24

Interrogatories = Questions submitted in writing to the other party. - ---> Up to 25 questions - ---> Can seek facts or contentions - ---> 30 days to respond, must be in writing and objections stated with specificity Requests for Admission = Request to admit truth or fact. - ---> If admitted, it’s in there for the trial. - ---> 30 days to respond, may admit, deny, or state they have made a reasonable attempt to ascertain the truth but lack information to admit/deny. - ---> The responding party can object to questions as outside the scope of discovery, but cannot simply claim that the matter is properly resolved by a jury. Requests for production of documents, tangible items, or access to evidence. - ---> 30 days to respond, may object as outside the scope of discovery. - ---> If documents, the responding party must provide them as they are maintained in the usual course of business and label them. - ---> If electronically stored information (ESI), can provide in the form it is normally maintained or in a reasonably usable form. Requests for Mental or Physical Examination: Used when a party’s mental or physical state is at issue. ----> Available only upon court order. When ordered, the party must submit to an examination. The examiner must prepare a report detailing the exam and it is available to any requesting party. Depositions: Used to ask questions of witnesses. - ---> May depose up to 10 witnesses, but can get a court order for more. - ---> Most depositions occur during the pendency of the lawsuit. Like other forms of discovery, these depositions cannot be conducted until after the 26(f) conference. - ---> In rare cases, a party may wish to depose a witness before a lawsuit is even filed. These are known as “depositions to perpetuate testimony” and are available only if all expected opposing parties are provided an opportunity to be present at the deposition and ask questions. - ---> May use at a hearing or trial as long as the opposing party had a reasonable opportunity to be present and these rules are followed: - ---> The deposition of a party/party’s designee can be used for any purpose. - ---> The deposition of a non-party can be used: (1) to impeach the deponent, or (2) if the deponent is unavailable, (dead, infirmity, or disappearance) the deposition can be used for any purpose. Subpoenas = Discovery from non-parties. Two types: (1) Subpoenas duces tecum – demand for documents. (2) Subpoenas ad testificatum – demand for testimony. ----> The person served may object as outside the scope of discovery or if it requires the person to travel >100 miles from home or work.

Answer 25

If they sort of comply: Motion to compel- Made after the movant has in good faith attempted to confer with the resistor. - ---> If granted – the movant gets fees/expenses for the motion unless the non-disclosure was not substantially justified. - ---> If denied – the non-movant may get fees, but only if the motion was not substantially justified. Sanctions: (if after a motion to compel, they still don’t comply) - ---> Court order declaring facts sought are established in favor of the requesting party; - ---> Court order prohibiting the disobedient party from presenting certain claims or defenses; - ---> Stay or dismissal of entire action; or - ---> Order of contempt. If they don’t comply at all with a deposition request, the party can immediately seek all sanctions above (except an order of contempt).

Answer 26

Most cases do not result in full trial; possible methods of resolving disputes w/o trial include: - default judgments - settlements - pretrial motions - voluntary dismissals; and - involuntary dismissals

Answer 27

Default Judgments: The P properly serves the D, but the D never responds; 2 Steps: (1) Entry of Default: Clerk must enter a default. (2) Entry of a Default Judgment: Issued only after a default has been entered. How it is issued depends on the nature of the plaintiff’s claim: o Entry by Clerk: If the claim is for a “sum certain” (or by computation) and the plaintiff requests the default judgment, the clerk must enter and assess damages and costs against the defendant. ---> Clerks may not enter default judgments against minors or incompetent persons. o Entry by the Court: If the clerk can’t enter a default judgment, it must be entered by the court, and the plaintiff must make that application to the court. ---> If the defendant is a minor or incompetent person, the court will only issue a judgment if the defendant is represented by a guardian or other competent person. ---> If the defendant initially appeared but later refused to defend the action, the court can issue default judgment only if the defendant was served with written notice of application for default 7 days before the hearing. ---> The judge may hold hearings to calculate money damages or other matters. Relief from Entry of Default and Default Judgment - --> If a clerk enters a default, the court may set it aside for good cause. - --> If the clerk or court enters a default judgment, the court may set it aside in accordance with Rule 60(b)—a post-trial motion discussed later in this outline.

Answer 28

If the P fails to prosecute their case or refuses to comply with a ct order or any of the FRCP, the D can move to dismiss. ------> Operates as an adjudication on the merits (with prejudice) unless the order states otherwise or it’s a dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19.

Answer 29

7A guarantees right to a trial by jury in suits at CL, where the value in controversy exceeds $20; Suits at common law, consider both: (1) Nature of the remedy: In 1791, so-called “common law courts” heard both common law and statutory actions, but only had the power to issue damages, not equitable relief (such as injunctions, specific performance, rescission, or reformation). - --> Thus, the 7th Amendment guarantees a right to a jury where monetary relief, rather than injunctive relief, is sought. If both forms of relief are sought, the right to a jury exists for any issue of fact underlying a damages claim – even if the resolution of that issue may also support injunctive relief. (2) Nature of the claim: Courts will also assess whether a claim can be fairly analogized to a 1791 common law claim. - ---> However, the nature of the remedy tends to be the primary inquiry. Demand for Trial by Jury o Any party can exercise the right. If there are ten parties, just one has to want it. o The demand must be filed no later than 14 days after the last pleading directed to the jury-eligible issue is filed. o The party exercising the right must file and serve on other parties a written demand for a jury trial. o If the demand is not timely filed and served, the right to a trial by jury is forfeited.

Answer 30

Size: 6-12 members Selection (voir dire) - ---> Challenge for Cause: Parties have an unlimited number of challenges for cause, but must articulate the nature of the juror’s unfitness - ---> Peremptory Challenge: Parties have 3, juror is automatically dismissed, no justification needed unless the strikes give rise to gender/race discrimination. If a strike gives rise to gender/race discrimination, the striking party must provide a nondiscriminatory explanation for the strike or else rescind its strike.

Answer 31

Motion to Dismiss = Motion filed by the defending party seeking dismissal of a claim against them. ----> Must be filed before an answer is filed within 21 days (where process was served) or 60 days (where service of process was waived). Grounds: - ---> Lack of SMJ; - ---> Lack of PJ - ---> Improper venue - ---> Insuff process - ---> Failure to state a claim upon which relief can be granted - The ct assumes the facts are 100% true, must be plausible, not probable (needs some facts) - ---> Failure to join an indispensable party Waiver: The federal rules require certain defenses be raised at certain times (use them or lose them). The defendant must include the following defenses in their first response (either motion to dismiss or answer) or they are forfeited: ----> Lack of PJ; ----> Improper venue; ----> Insufficient process; ----> Insufficient service of process. The defendant must raise the following defenses any time before trial ends, or they are forfeited: ----> Failure to state a claim upon which relief can be granted; ----> Failure to join a necessary party. The defense of lack of SMJ is never forfeited. It may be raised anytime, even on appeal.

Answer 32

If a P fails to prosecute her action or to comply w/ the FRCO or a ct order, a D may move to dismiss. ----> A dismissal for failure to prosecute is a dismissal w/ prejudice, unless the dismissal order states otherwise

Answer 33

No genuine dispute of material fact, and movant is entitled to judgment as a matter of law. - ---> Either the plaintiff or the defendant can move for summary judgment. - ---> Materials used: The rule allows the parties to present, and the court to refer to on its own, the pleadings, discovery documents, materials produced in mandatory disclosure, and affidavits. - ---> Information offered to the court needs to be admissible at trial, even if it is not presently in a form that would be admissible. - ---> A motion for SJ may be made any time before 30 days after the close of discovery. Analysis Step 1 – Assess only the arguments advanced by the movant. Have they shown that the non-movant lacks sufficient facts and/or law to prevail on the claim/defense in question? - ---> Two ways: (1) Pointing out - with citations to the record - holes in the opposing party’s claims or defenses; or (2) Adducing new evidence to demonstrate that the claim or defense cannot be proven. NOTE: Assume witnesses tell the truth – no credibility issues. Step 2 – Examine the non-movant’s response – they must bring evidence sufficient for a reasonable jury to find in their favor on a claim or defense. - ---> The court will look only at the non-movant’s evidence (won’t weight it against the moving party’s) and assume the witnesses are truth tellers – no credibility issues. - ---> If the non-movant does not produce evidence, but just talks pleadings, they’ll lose, but if the pleadings are under oath, they will count as being evidentiary.

Answer 34

After the pleadings are closed (but early enough not to delay the trial) a party may move for judgment on the pleadings.

Answer 35

The court will order a pleading to be clarified if it is so vague that the responding party cannot reasonably prepare a response.

Answer 36

The court can (on its own or on motion) order material stricken if the complaint/answer contains redundant, immaterial, or scandalous stuff.

Answer 37

During a jury trial only, the court may enter (on its own or upon motion), JML if: (1) The party against whom judgment is entered has been fully heard on the issue, and (2) The party lacks sufficient evidence to prevail on an issue necessary to a claim or defense. - -----> Same as summary judgment standard – the court assumes the non-movant’s witnesses are all truth tellers and does not weigh the evidence.

Answer 38

Post-trial motion. If a party filed a losing JML during trial, and then loses at trial, they can try again. The motion must be filed within 28 days of entry of judgment (or discharge of the jury if the motion addresses a jury issue not decided by the verdict). In ruling on this renewed motion for JML, the court may: (1) Allow the verdict to stand; (2) Enter the opposite verdict; or (3) Order a new trial (even if a motion for a new trial was not made).

Answer 39

Must file within 28 days of entry of judgment. Grounds: (1) Against the great weight of the evidence – The court can take into account the comparative volume and credibility of the evidence. (2) Excessive damages – The jury returns a verdict that is “grossly excessive” or “shocks the conscience.” The court can also just choose an appropriate amount and let the plaintiff choose between accepting that amount and doing a new trial. (3) Procedural error or misconduct – only if: - ----> Error or misconduct likely affected the result of trial, and - ----> The party objected to the error when it had the opportunity to do so. - ----> Examples of errors/misconduct: Wrongful exclusion of evidence, incorrect jury instructions, communication between witnesses, ex parte communication with the judge, and juror misconduct. (4) Newly discovered evidence: If a party discovers evidence after the verdict that could not, with reasonable diligence, have been found before the verdict, a new trail is warranted as long as the evidence is not solely for the purpose of impeachment and would likely change the result.

Answer 40

A motion for remittitur asks the judge to reduce the award of damages that are excessive. -----> Fed cts will routinely grant motions for remittitur The converse of a remittitur is an additur (an increase in the award of damages). -----> Unconstitutional in fed ct

Answer 41

Asks the court to undo the judgment, set it aside. Must be made within a reasonable time - promptly after learning of the grounds. -----> First 3 grounds (mistake, new evidence, and fraud) must not be made later than 1 year from final judgment. 6 Grounds: (1) Mistake, inadvertence, or excusable neglect; (2) Newly discovered evidence; - ----> Same analysis as motion for new trial. (3) Fraud, misrepresentation, or misconduct by a party; - ----> If a party withholds key evidence during discovery, bribes a witness, or makes false statements to the court or other parties. (4) Judgment is void; - ----> Court lacked SMJ or PJ. (5) Judgment has been satisfied; - ----> If a party has satisfied the judgment entered against it, the party may seek to have the judgment discharged so that it is no longer under the supervision of the court. - ----> This type of relief is most often sought in suits involving injunctive relief. (6) Any other reason that justifies relief (catch-all). - ----> Can’t be used when any of above apply.

Answer 42

Jury Verdicts: Unless the parties stipulate otherwise, jury verdicts must be unanimous. (1) General Verdict: A statement that the plaintiff wins or the defendant wins. (2) Special Verdict: The court may direct the jury to answer specific questions of fact. (3) General Verdict with Specific Questions: The court may order the jury to return a general verdict (“is D liable to P?”) but also to answer specific questions (“was D impaired while driving?”). ----> If the verdict and answers to the questions are inconsistent, the judge can: • Order a new trial; • Order the jury to re-deliberate; or • Enter the verdict appropriate to the specific answers.

Answer 43

The doctrine of claim preclusion prevents relitigation of a claim or all claims: (1) between the same parties and those in privity w/ them (2) arising out of the same transaction or occurrence; and (3) that were determined on the merits by a ct w/ proper SMJ and PJ Claim preclusion operates as an affirmative defense that is waived if not properly asserted. -----> It can also be asserted as a basis for SJ

Answer 44

Prevents relitigation of issues that were fully and fairly litigated and were necessarily decided in a proceeding that reached a final judgment on the merits. - ---> Issue preclusion may NOT be used against someone who was not a party to the previous action. - ---> Issue preclusion may be used offensively by one who was not a party to the first action against one who was a party in the earlier suit.

Answer 45

W/ limited exceptions, interlocutory orders (orders either asserting provisional relief or made upon motion or application during trial, but which are not final adjudications on the merits) may not be reviewed before final judgment.

Answer 46

Appellate review is authorized for an interlocutory order rendered by a TJ that (exceptions to final order doctrine): (1) conclusively determines the disputed question (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment

Answer 47

Congress has given the fed cts SMJ over appeals from an interlocutory order of the trial ct that grants, denies, continues, modifies, or dissolves an injunction. (exception to final order doctrine) ----> Interlocutory orders for injunctive relief are not appealable if a similar suit is pending in state ct.

Answer 48

Congress has given to the fed cts SMJ over appeals from all final decisions of the fed district TCs. - ---> The basic principle in the fed system is that only final judgments may be taken to the appellate cts. - ---> A final judgment is generally dwfined as one that disposes of all issues as to all of the parties.

Answer 49

Although an appellant may want an appeals ct to review all errors alleged to have occurs at the TC level, there are restrictions on what is reviewable: (1) w/ few exceptions, cts will not review errors that are not on the record of the TC proceeding; and (2) errors that do not affect substantial rights will be labeled harmless and may be unreviewable. Conclusions of law will typically be reviewed de novo (the ct will conduct a non-deferential review). Factual findings may be disturbed only if clearly erroneous Other determinations by a judge will be affirmed absent some indication that the judge abused his discretion.

Answer 50

Determining Citizenship (1) Humans - -----> Only citizens of one place at a time: the state where they reside and intend to remain indefinitely. - -----> Wanderer Rule: A human being’s citizenship does not change until the person plants roots in a new state by residing there and intending to remain indefinitely. (2) Corporations - -----> Could be citizens of two places (citizens where they are incorporated AND the state in which they maintain their PPoB - nerve center). (3) Unincorporated Associations - -----> Unions, LLCs, Partnerships - -----> Citizens of the state where every member is a citizen (could be all 50 states) (4) Representative of Incapacitated Party - -----> Minor or deceased - -----> Citizenship is that of the incapacitated party (not the representative)

Answer 51

The amount in controversy must exceed $75,000. - ----> A ct will defer to the P's allegation of financial injury, unless it appears “to a legal certainty” that such allegations are incorrect. - ----> The P does not have to actually recover over $75,000 in damages; they just need to plead an appropriate amount in good faith. Aggregation of Claims If a P brings multiple claims against a single D the court will aggregate claims to see if the amount in controversy is reached. -----> Claims can be totally unrelated; there is no same transaction or occurrence requirement. -----> Can’t aggregate a P's multiple claims against multiple Ds.

Answer 52

Ordinary FQ Cases: -----> Most FQ cases involve a violation of federal statute or constitutional provision. In these cases, the court just applies the text of the federal law and any authoritative precedent. Embedded FQ Cases: -----> In cases in which a state law claim depends on a question of federal law, the court applies state law to the state law issues and federal law to the federal law issues. Federal Common Law Cases: - ----> Federal common law is a body of precedent repeatedly applied and molded by the courts. - ----> This body of law is generally confined to the following fields of law: (1) Maritime law (2) Foreign relations (3) Commercial rights and liabilities of the federal govt (4) Property rights and liabilities of the federal govt - ----> In these cases, federal courts will apply (and, if need be, create) federal common law and ignore any state law that might otherwise apply.

Answer 53

``` 6 -jurors 10 -depositions 14x2 -days to req jury trial; -TRO 20 -to respond to complaint 21x2 -to amend 2 pleadings: complaint/answer; -safe harbor provisions (21 days to fix it) 25 -interrogatories 28x2 -can move for new trial; -renewing motion for J as matter of law 30x2 -to appeal; -to remove 60 -to respond if waive formal SoP 90x3 -to respond if waive formal SoP + foreign D; -disclose to other side re experts; -P serve D w/ complaint following lawsuit ```

Answer 54

Service of process activates the court’s authority to assert PJ. - --> If a court has the power to assert PJ over a party, that power becomes active at the moment the defendant is served with process (or a waiver is filed with the court, if service is accomplished by a request for waiver). - --> NOTE: Where a plaintiff relies on tag to subject the defendant to personal jurisdiction, the court’s PJ is both created and activated at the exact same moment.

Answer 55

The defendant is entitled to notice of the claims against him and an opportunity to respond to those claims. Notice through service: If served, basically have notice. ----> The key is whether service is reasonably calculated to inform the defendant of the action against them. Notice without service: May be a constitutional issue. ----> The key is whether the plaintiff took steps that were reasonably calculated to inform the defendant of the action against them.

Answer 56

Initial response (answer or pre-answer motion) - ---> If the defendant was actually served with process - 21 days to respond. - ---> If service of process was waived - 60 days to respond. If the defendant responds with one of the above motions (motion for more definite statement, motion to strike, or motion to dismiss) and it is denied, the defendant must file an answer within 14 days of denial.

Answer 57

Relevance: A party is allowed discovery into any nonprivileged matter that is relevant to any claim or defense. ----> Relevant if likely to make any fact in dispute more or less likely to be true, regardless of whether the info would be admissible at trial. Work Product (WP): Even if relevant, information may be protected work product. ----> WP = Document or tangible object created by a party or their attorney in anticipation of litigation (post-incident description of events or records of communications with witnesses). ----> Exceptions: WP discoverable in 2 situations: (1) Party can always obtain a statement it has made. (2) Can get WP if the party has a substantial need and can’t get it without undue hardship. -If the court orders disclosure for this reason, it must make every effort to keep secret the author’s litigation strategy or mental process. Privilege: Privileged matter is not discoverable. ----> Attorney/client – Covers confidential communications between an attorney and client for the purpose of obtaining or rendering legal advice. Proportionality: ---> Even if a party seeks info that is relevant, not work product, and not privileged, the info may still be undiscoverable if the request is not proportional to the needs of the case considering: • Importance of the issues at stake in the action; • Amount in controversy; • Parties’ relative access to relevant information; • Parties’ resources; • Importance of the discovery in resolving issues; and • Whether the burden or expense of the proposed discovery outweighs its likely benefit. ---> The court must limit the discovery sought if: • It is not proportional to the needs of the case; • It is unreasonably cumulative or can be obtained from a less burdensome source or in a less burdensome way; or • The party seeking the discovery has already had ample opportunity to obtain the information. Experts: Non-testifying Expert: Assessing the merits of the case. -------> No intention to call at trial - undiscoverable unless the party has an extraordinary need/no other way to obtain such information (rare). -----> Testifying Expert: Opinions held by those testifying are discoverable to a limited extent. Besides mandatory disclosure, a party can also get communications relating to: • Compensation for the expert’s study or testimony; • Data provided by an attorney to the expert; or • Any assumption the attorney asked the expert to make in developing the expert opinion.

Answer 58

Sometimes, a claimant wants to drop the case. 3 options: - ---> Option 1: Unilateral dismissal by filing notice any time before the defendant has filed an answer or motion for summary judgment. - ---> Option 2: Stipulation of dismissal signed by all parties (settlement). - ---> Option 3: Permission of the court. Generally a court will grant permission to dismiss, but if the defendant filed a counterclaim, the court will not dismiss unless that claim can remain pending for independent adjudication. Prejudice on Future Litigation The plaintiff’s ability to re-litigate will depend on whether the claim was dismissed “with prejudice” or “without prejudice.” ----> If the notice, stipulation, or court order specifies with or without prejudice, the plaintiff is bound by that. ----> If the notice or stipulation is silent, the first dismissal is presumed to be without prejudice; subsequent dismissals are presumed to be with prejudice.

Answer 59

Before deliberating, the judge instructs the jury on the law applicable to the claims alleged. Any party may: - ---> Propose particular instructions no later than the close of all evidence. - ---> Object to any instruction. This must be done before the jury begins deliberations. - ---> NOTE: If the parties are informed of what the instructions will be before they are read to the jury, objections must be made before closing arguments.

Answer 60

Findings/conclusions: The court must find the facts “specially” (meaning that the court must state its finding with regard to facts in dispute) and state its conclusions of law separately. Partial Judgments -----> During trial, if a party has been fully heard on an issue, and the court determines that the party lacks sufficient evidence to prevail on a particular claim, the court can enter judgment on that claim without entering judgment on other claims.