Federal Civil Procedure Flashcards
Waiver of Attorney-Client Privilege
A blanket or total waiver results only if (1) the waiver was intentional and (2) both the disclosed and undisclosed information concerns the same subject matter.
Eerie Doctrine
Under the Erie doctrine, federal courts are not allowed to create law to resolve state law claims or choose among states’ laws to decide the claims.
A federal court that has jurisdiction over a state law claim through diversity or by supplemental jurisdiction must apply the substantive law of the state where the court sits.
The federal court will always apply it’s own procedural (FRCP) laws.
“Relation Back” Doctrine; Adding a New Claim
When the plaintiff wishes to amend their pleadings to include a claim in which the Statute of Limitations has already run out, the “relation back” doctrine may save the day.
When the original pleading was filed before the SOL has run, and the plaintiff is trying to amend the pleading to include a new claim in which the SOL has already ran, the claim may “relate back” to the date of the original pleading if it arose out of the same conduct, transaction, or occurrence.
“Relation Back” Doctrine; Adding a New Defendant
If the new defendant got notice of the lawsuit within the time established for serving a complaint, and knew/should have known that, but for a mistake, they should have been sued, then a later amendment to add the “new” defendant will relate back, regardless of whether the statute of limitations has run.
AKA, if the defendant the plaintiff is trying to add had notice of the original lawsuit and knew or should’ve known that they should’ve been included in the first place, the new defendant can be added.
“Safe Harbor” Provision for Sanctions
Rule 11 has a safe harbor that allows the opposing party to withdraw or amend an offending pleading within 21 days after he is served with the motion for sanctions. I.e., the attorney can correct their mistakes before they are charged with sanctions.
Party seeking sanctions must serve the motion for sanctions, wait 21 days, and then file the motion for sanctions.
However, the COURT does NOT have to wait 21 days, and can serve sanctions sua sponte as long as they enter an order to show cause for why the sanctions should not be imposed, so that the attorney has an opportunity to be heard.
NOTE: Motions for sanctions can’t be combined with any other motion.
Sanctions, In General
THE COURT HAS BROAD DISCRETION IN IMPOSING SANCTIONS.
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11.
The motion must be served on the opposing counsel, but it must not be filed or be presented to the court if the challenged claim/contention is withdrawn or corrected within 21 days after service. (Safe Harbor provision)
Deposition of Corporations
A corporation may be deposed. The corporation designates one or more persons whose answers will bind the corporation.
With respect to any deposition where the deponent is a party, the deposition is scheduled by serving a notice of deposition on all of the lawyers.
Failure to Prosecute
If a plaintiff fails to comply with a federal court order, the plaintiff puts itself in danger of dismissal for failure to prosecute (basically, when they take to long). Either the defendant or judge can move for a MTD based on failure to prosecute. Acts as a dismissal with prejudice/adjudication on the merits.
Whether a plaintiff failed to prosecute depends on three factors —
- Whether the plaintiff acted in a manner that deliberately or unreasonably delayed the matter;
- The amount of prejudice, if any, to the defendant; and
- The reason, if one exists, that sanctions short of dismissal would not suffice.
Long (intentional) delays are part of the inquiry, but the mere passage of time will not suffice.
Motions to Dismiss Which Can be Filed at ANY Time (Can’t be Waived)
- Lack of subject-matter jurisdiction,
- Failure to join a required party, and
- Failure to state a claim on which relief can be granted (12(b)(6)).
Motion for a More Definite Statement
Meant to give the defendant a clear statement of the claim so the defendant can adequately respond. The defendant must make this motion before filing a responsive pleading.
Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted
A pleading that states a claim for relief must contain:
(1) A short and plain statement of the grounds upon which the court’s jurisdiction rests and a statement of a claim, which, if true, would entitle the claimant to relief; and
(2) A demand of relief.
Importantly, the “short and plain statement of the claim” must include “sufficient factual matter” to state a plausible claim that is “more than a sheer possibility” that a defendant has acted unlawfully.
If either of these requirements are not met in the pleading, the ∆ can move for a 12(b)(6) motion to dismiss.
Renewing a Request for a Jury
If a party has expressly demanded a jury trial in accordance with state law prior to the case being removed to federal court, the demand need not be renewed after removal.
“Home State Defendant” Rule
A defendant cannot remove a case from state to federal court if subject-matter jurisdiction would be grounded only in diversity jurisdiction and the defendant is a citizen of the state where the plaintiff originally filed suit in state court.
Protective Order Limiting Discovery
The court may issue an order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.
May include requests that would amount to an unreasonable intrusion into a party’s privacy, such as an extensive list of sexual partners, for example.
Settling a Class Action
Parties seeking approval of a settlement of a class action must file with the court a statement that identifies any agreement made in connection with the proposed settlement, including agreements to compensate named representatives separately.
If named reps. are being compensated separated, the court needs to consider this as it decides whether the settlement is fair and reasonable to the class.
What defenses must be raised in the original answer/motion, or else are forfeited?
- Lack of personal jurisdiction,
- Improper venue,
- insufficient process, or
- insufficient service of process
Demand for a Jury
The 7th Amendment includes the right to a jury trial. To invoke the right, a party must serve a written demand onto the other party no later than 14 days after the final pleading. The written demand can be included in the complaint.
Must specify which issues they want a jury for, if they don’t, a jury will preside over all issues.
A party waives their right to a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.
Subpoenas
Allows you to acquire discovery from non-parties.
Subpoena Dueces Tecum: A demand for documents from a non-party.
Subpoena Ad Testificatum: A demand for testimony from a non-party.
The person served may object as outside the scope or if it requires them to travel more than 100 miles to the courthouse has the crow flies.
A party who wants to depose a non-party must give reasonable written notice to every other party. Each party is entitled to attend any deposition and ask questions on cross-examination.
Right to a Jury Trial
The 7th Amendment guarantees a right to a jury where monetary relief (not injunctive relief) is sought. “The right to a trial by jury in suits at common law in amounts of controversy exceeding $20.”
If a claim is for both injunctive relief and monetary damages, the right to a jury exists for the entire underlying fact dispute.
A demand for a jury trial must be made within 14 days of the final pleading.
Depositions
A party may depose up to 10 witnesses. May be used before a lawsuit is filed if the other party has the opportunity to be present.
A party who wants to depose a non-party must give reasonable written notice to every other party. Each party is entitled to attend any deposition and ask questions on cross-examination.
Requests for Production
Documents, tangible items, or access to evidence may be requested in discovery. The other party has 30 days to respond, and must provide the item as they are maintained in the usual course of business.
If the requested item is electronically stored information, they must be presented in a reasonably usable form as it is maintained.
3 Ways to Establish Subject-Matter Jurisdiction
- Federal Question Jurisdiction
- Diversity Jurisdiction
- Supplemental Jurisdiction
Subject-matter jurisdictions is necessary for every claim.
Service of Process
Process must be served with both the complaint and summons within 90 days of filing. If process is not served within 90 days of filing, the court may dismiss without prejudice.
Anyone older than 18 who is not a party may serve.
Delivery can be made to either:
- ∆ in person;
- A person of suitable age of discretion who lives at the ∆’s abode;
- The ∆’s registered agent;
- Mailed, along with a letter requesting the ∆ to waive in-person service.
Clearly Erroneous Standard of Appellate Review
Governs questions of FACT. A court will affirm unless a clearly erroneous mistake of fact was made that was not a “harmless error”. Highest level of deference to the lower court.
Under the harmless error standard, if the appellate court finds that the lower court’s actions were clearly erroneous, then they must also establish that the party’s substantial rights were also harmed, otherwise the decision will not be reversed.
Venue
Venue is dictated by the (1) residency of the ∆s, the (2) location of events, or (3) where at least one ∆ is subject to personal jurisdiction.
Where both ∆s are in the same states, then venue is proper where any one ∆ resides.
If the ∆s reside in multiple states, then venue is proper at the location of the harm.
When Can You Transfer Venue
Venue can be transferred upon (1) agreement, (2) convenience, (3) in the interests of justice, or (4) under forum non conveniens.
(1) When all parties agree to transfer (even if they all agree to transfer somewhere it would be normally not allowed).
(2) If the case could have been filed in another court originally and transfer would be necessary for the convenience of the parties and witnesses.
(3) If the case was filed in an improper venue the court can dismiss OR transfer.
(4) If the most convenient forum is not in the U.S., the court will dismiss without prejudice so the ∆ can refile in the other country.
Serving a Corporation
A corporation can be served by either (1) delivering to an officer of the corp., (2) delivering to a manager or general agent, or (3) delivering to any other authorized agent.
Citizenship for Unincorporated Associations
Unincorporated associations are citizens of every state in which a member is a citizen — even if that is all 50 states.
Unincorporated associations include LLCs or unions.
Default Judgment
When the π serves the ∆, but the ∆ does not respond.
First, the clerk will file the default. Then, default may be entered by the court.
A clerk may enter default judgment only when the amount sought is a sum certain and the defaulting party has failed to appear.
Sum Certain: An amount of money that is certain by computation that it belongs to you, and the clerk does not have to weigh any evidence as to that fact.
Citizenship for Corporations
Corporations are citizens of the state in which they were incorporated and their principal place of business (“nerve center” test).
Enforcement of Discovery
Discovery can be enforced by either a motion to compel or sanctions. To file a motion to compel, the party must have made a good faith effort to confer or attempt to confer with the resistor.
Requests for Admission
The request to admit or deny a fact. A party has 30 days to respond, but can object to questions outside of the scope of discovery.
If a party doesn’t know enough information to admit or deny, they must say that they have at least made a reasonable attempt to ascertain the truth but still they lack the information to admit or deny.
Permissible Counterclaim vs. Compulsory Counterclaim
A permissive counterclaim does not arise out of the same transaction or occurrence, and is therefore not required to be brought.
A compulsory counterclaim does arise out of the same transaction or occurrence, and therefore must be brought or the claim is forfeited.
De Novo Standard of Review
Regarding questions of law. Zero deference given to the lower court; addresses the legal issue as if it has never been addressed.
Preliminary Injunction
OBJECTIVE: To preserve the status quo.
Will be entered if:
- There is a likelihood of success on the merits.
- A threat of irreparable harm.
- The balance of hardships is in favor of the π.
- The injunction would not be injurious to the public interest.
- The party seeking an injunction has paid security.
HELP
- Harm
- Evaluation of hardships
- Likelihood of success on the merits
- Public policy/feasibility of court supervision
If granted, the issue must be tried within 6 months unless agreed to otherwise.
Temporary Restraining Order
To secure a TRO without notice, the π must show an immediate risk of irreparable harm.
Only last long enough for the court to consider and resolve a request, but no longer than 14 days.
Considered to be stopgap measures until the court decides whether to grant a preliminary injunction.
Methods of Discovery
- Interrogatories;
- Requests for admission;
- Requests for production;
- Requests for mental or physical exam;
- Depositions;
- Subpoenas.
Motion to Dismiss
MTD must be filed either before the answer, within 21 days of the answer, or within 60 days of the answer if service was waived.
Grounds for a MTD:
1. Lack of subject-matter jurisdiction. (Can never be waived)
2. Lack of personal jurisdiction. (Waived if not in first motion/answer)
3. Improper venue. (Waived if not in first motion/answer)
4. Insufficient process. (Waived if not in first motion/answer)
5. Insufficient service. (Waived if not in first motion/answer)
6. Failure to state a claim upon which relief can be granted. (Must be brought before trial ends, or waived)
7. Failure to join an indispensable party. (Must be brought before trial ends, or waived)
Summary Judgment
FRCP 56(a) allows a summary judgment motion to be granted only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
A motion for SJ may be supported by depositions, documents, ESI, affidavits or declarations, admissions, interrogatories (anything besides the pleadings).
The moving party must prodice evidence to show that there is no genuine issue of material fact. Burden then shifts to the nonmoving party, who must produce evidence to show that there is a GIMF.
Motion is viewed in the light most favorable to the nonmoving party.
Summary judgment motions must be made any time before 30 days after discovery closes. (So can be made during discovery)
Scope of Discovery
Parties are permitted to discover any non-privileged information that is relevant to the claim or defense, regardless of if it will be relevant at trial.
Discovery must be proportional to the needs of the case, considering the importance of issues, amount in controversy, parties’ access to the information, resources, and whether the burden or expense of discovery would outweigh the benefit.
Non-testifying expert reports are generally un-discoverable without extraordinary need.
Only with a court order may a party discover unprivileged information that is relevant to the subject matter of the case but not to any existing claim or defense.
Interrogatories
Up to 25 questions may be submitted to the other party, in writing, to seek facts or contentions. The other party then has 30 days to respond.
Mandatory Initial Disclosures
Within 14 days after the Rule26(f) scheduling conference, you must provide the name and contact information of:
- All witnesses and/or parties who may have discoverable information,
- Documents,
- ESI,
- Tangible documents,
- A computation of damages, and
- Any insurance agreements.
Mandatory Expert Disclosures
If the expert is one who has been retained/paid to provide expert testimony, or whose employment regularly involves giving expert testimony, they must be disclosed at least 90 days before trial along with their written expert report, which must include:
1. All opinions they will testify to;
2. All facts and data considered in making their opinion;
3. Any exhibits to be used;
4. Expert’s qualifications;
5. All cases in the last 4 years that they’ve testified in;
6. A statement of compensation.
If the expert is not specially hired to make an expert opinion, and expert report is not required, and they must only disclose:
1. The subject matter on which they will testify to; and
2. A summary of the facts and opinions that they will testify to.
Mandatory Pretrial Disclosures
At least 30 days before trial, you must provide a list of witnesses, witnesses that may be called if need be, any testimony that will be given via deposition or transcript, and all physical documents or other evidence that plans to be admitted.
Minimum Contacts Test for Personal Jurisdiction
A court will have personal jurisdiction via minimum contacts if:
1. The ∆ has established minimum contacts (caused harm, does business, or has property in the state), AND
2. The claim against the ∆ arises from those contacts, AND
3. Personal jurisdiction will not offend the notions of fair play and substantial justice (burden is on the ∆ to prove that it would).
Personal Jurisdiction
Personal jurisdiction arises from the Due Process Clause of the 14th Amendment, and must satisfy both the U.S. Constitution and the state’s long-arm statute. Personal jurisdiction is the court’s power over a party, including the power to render judgments affecting that party’s rights.
Can be established by:
1. Residency, (party is domiciled in the state)
2. Consent/waiver, (party consents to or waives personal jurisdiction)
3. Service, (party is served while in the state)
4. Minimum contacts, or
5. “At home” jurisdiction. (extremely high bar)
Answer
Must answer within 21 days of service, or within 60 days if service is waived.
An answer must specifically admit or deny each allegation, or it is deemed admitted. Answers must also include ANY and ALL potential defenses — if a defense is not included, it is deemed forfeited.
Motion for Judgment as a Matter of Law
Same concept as summary judgment, except it occurs during trial and not after discovery. Can also be brought post-trial (renewed) if raised in-trial first.
Jury Composition
A jury may have 6-12 members, which are selected during voir dire.
A party will have unlimited challenges for cause, but must be able to articulate the nature of the juror’s unfitness.
A party will have only three preemptory challenges in which the juror is automatically dismisses, and no justification is needed unless it gives rise to gender or race discrimination.
Well-Pleaded Complaint Rule
A case arises under federal law if the federal question appears on a fair reading of the plaintiff’s well-pleaded complaint.
Citizenship of Human Beings
A human’s domicile is the state in which they reside with the intent to remain indefinitely.
When is Diversity Jurisdiction Measured
Diversity jurisdiction is measured from the time the suit is filed, however, amended complaints that add or dismiss parties may affect it.
Bulge Rule
A impleaded ∆ will be subject to the personal jurisdiction of a federal court if they are served within 100 miles of the courthouse.
Deadline for Service of Process
Process must be served within 90 days of filing.
Deadline for Answer
An answer must be filed within 21 days of service, or within 60 days if service is waived.
Deadline for Amending an Answer or Complaint
An answer or complaint must be amended within 21 days of service of the initial pleading.
Impleader
When the ∆ brings a claim against a person who is not already a party to the action. The impleader action must allege that the third party is responsible for some or all of the liability.
Must be filed within 14 days of serving the answer.
Two most important kinds of impleader claims are indemnity and contribution claims.
Usually contributory negligence or indemnity claims.
Aggregation of Claims
If a single plaintiff brings multiple claims against a single defendant, the court will aggregate the claims to reach the amount in controversy.
Claims against multiple defendants or from multiple plaintiffs will not be aggregated.
Additur
When a court increases the amount awarded by a jury. Is not allowed in federal court, only state.
Federal Question Jurisdiction
A court can assert jurisdiction over a state law claim that raises a federal issue if:
- The federal question is necessarily raised (Well Pleaded Complaint Rule);
- The federal question is actually disputed;
- The federal question is substantial; and
- Capable of resolution in federal court without disrupting the federal-state balance.
Issue Preclusion (Collateral Estoppel)
Bar re-litigation of an issue if:
(1) The issue was actually litigated and determined/decided in the first suit;
(2) The issue was on the merits and essential to the judgment (not a collateral issue);
(3) There was a valid final judgment on the merits;
(4) The party against whom preclusion is sought had a full and fair opportunity and incentive to litigate in the first suit.
SAFE —
(S)ame issue, (A)ctually litigated, (F)inal judgment on the merits, and (E)ssential to the judgment.
Requirements of a Complaint
- Grounds for subject-matter jurisdiction.
- Statement of facts that are sufficient to establish a claim upon which relief can be granted.
- A demand for judgment and relief.
If alleging fraud or mistake, the complaint must be plead with particularity.
Supplemental Jurisdiction
Supplemental jurisdiction allows a claim without federal question or diversity jurisdiction to “piggyback” onto a claim that does have federal question or diversity jurisdiction. Will be permitted if the claims arise out of the same transaction or occurrence — if they are unrelated, no supplemental jurisdiction.
Additionally, if the anchor claim is based on diversity jurisdiction and the piggyback claim is joined under Rules 14, 19, 20, or 24, then supplement jurisdiction is not available.
Removal
A ∆ can move a case from state to federal court if it could have been originally filed in federal court. Can be removed only to the federal court in the state in which it was originally filed (Home State Defendant Rule).
Must remove within 30 days of service.
Choice of Law for Diversity Cases
(Eerie) If there is a federal law that is valid/directly on point, then the federal law will apply (usually the FRCP). However, if there is no federal law on the matter, then the federal court will apply the law of the state in which it sets, in order to avoid unfairness and forum shopping.
Requirements in Forming a Class Action
- Numerosity: Must have too many πs to join in a regular suit.
- Commonality: All πs must have the same question or law and/or fact.
- Typicality: The claim must be typical for a class action.
- Representativeness: The representative must fairly protect the interests of the class.
Diversity Jurisdiction
Federal courts will have jurisdiction over actions between citizens of different states where the amount in controversy exceeds $75,000. Diversity must be complete, all plaintiffs and all defendants must be from separate states (unless it is a class action, where minimal diversity is req.).
Shared citizenship between any plaintiff and any defendant destroys diversity jurisdiction.
Abuse of Discretion Standard of Review
Pertains to inherently discretionary questions, such as admitting evidence, ruling on motions, or instructing the jury.
Claim Preclusion (Res Judicata)
Bars re-litigation of a case if it has the:
(1) Same parties in the same situation (same π and same ∆);
(2) Same transaction or occurrence;
(3) A valid final judgment on the merits (VFJM).
NOTE: If a case was dismissed for lack of proper PJ or SMJ, improper venue, failure to join a party, voluntary dismissals, or any other dismissal “without prejudice”, it is NOT a final judgment on the merits and will not preclude a claim. Any other dismissal with prejudice is a VFJM.
Collateral Order Doctrine
An exception to the final judgment rule.
If an order pertains to a matter unrelated to the merits, conclusively decides an issue, and delaying appeal until final judgment would effectively deny appellate review, then the issue may be appealed prior to a final judgment on the merits.
Cross-Claims
A claim filed by a party against a co-party. Must arise from the same transaction or occurrence, but once filed, the co-party may bring a compulsory or permissive counterclaim.
Amending Pleadings
Each party gets one amendment of their pleading as a matter of right.
A complaint must be amended within 21 days of serving, or within 21 days of service of the answer or motion to dismiss.
An answer can be amended within 21 days of service.
If longer than 21 days, a party may be able to amend with permission by the opposing party or the court.
A party can make amendments before trial or even during and after trial.
Grounds for a New Trial
- The verdict was against the great weight of evidence.
- The damages were “grossly excessive or shocks the conscience.”
- There was procedural error or misconduct that affected the outcome of the trial and was timely objected to in-trial.
- There is newly discovered evidence.
Deadline for Motion for Summary Judgment
A motion for summary judgment must be filed within 30 days from the close of discovery.
Deadline for Removal
A motion for removal must be filed within 30 days of service.
Motion for Relief from Judgment
Asking a court to set aside or “undo” a judgment. 6 grounds:
1. Mistake/inadvertence/excusable neglect;
2. Newly discovered evidence;
3. Fraud/misrepresentation/misconduct;
4. The judgment is void;
5. The judgment has been satisfied;
6. “Any other reason justifiable.”
Intervention
When a non-party is interested in the claim but has not been joined. A party may be permitted to intervene when they *claim an interest** relating to the subject matter, and they wouldn’t be able to protect that interest without intervening.
Probate Exception
Federal courts will generally not exercise jurisdiction over probate matters such as the validity of a will or administration of an estate to preserve state control over wills and estates.
Remittitur
The reduction of a jury award if the court thinks it is grossly excessive.
Mandatory Joinder
A party is necessary if the court cannot grant complete relief without them and the party claims an interest in the subject of the action.
- Absent party must be necessary (usually joint tortfeasors aren’t necessary).
- Necessary party must be able to be joined (court must have personal jurisdiction and diversity/subject matter jurisdiction can’t be destroyed upon joining)
If the party can’t be joined because it would destroy subject matter jurisdiction, they may be joined if they are indispensable.
Long Arm Statute
A state court may exercise personal jurisdiction over an out of state ∆if authorized by the state’s long-arm statute. Jurisdiction under a long-arm statute must satisfy constitutional requirements:
- The ∆ must have such minimum contact with the state so as not to offense traditional notes of fair play and substantial justice.
For jurisdiction to be constitutional under a “minimum contacts” analysis —
1. The ∆ must have established a minimum contact with the forum state;
2. The claim arose from that contact; and
3. The exercise of jurisdiction wouldn’t offend FP&SJ.
Un-waivable Motions to Dismiss
- Failure to state a claim upon which relief can be granted. (Can be raised at any time before trial ends)
- Lack of subject-matter jurisdiction. (Can be raised at any time, even in appeal)
Waivable Motions to Dismiss if Not Brought in Original MTD
- Lack of personal jurisdiction.
- Improper venue.
- Insufficient service.
- Insufficient process.
Challenging a Juror For Cause
A juror can be challenged for cause and automatically dismissed without using a preemptory challenge if —
- They have a felony conviction or any other “inherent disqualification”.
- The judge believe that a bias may exist (ex: relationship with either party).
- An actual bias does exist (the juror would actually use predetermined beliefs or principles to decide the case instead of the facts).
Rule 11
Rule 11 requires that every pleading, motion, or other paper filed with the court be signed.
Upon signing, the party certifies that to the best of the person’s knowledge, information, and belief, formed after a reasonable inquiry:
- The document isn’t presented for an improper purpose, such as to harass or delay.
- The claims/defenses are warranted by law.
- The factual contentions or denials have evidentiary support or reasonably believed based on lack of information.
Interlocutory Appeals
In general, interlocutory orders are not final adjudication on the merits and cannot be appealed before a final judgment. However, under the Collateral Order Doctrine, interlocutory orders can be appealed when/if —
- It conclusively determines the disputed question;
- It resolves an important issue that is completely separate from the merits of the case;
- It is effectively un-reviewable on appeal from the final judgment.
Discovery, in General
A party is entitled to demand the discover of any matter that is relevant to the claim or defense of any party, not unreasonably cumulative or burdensome, and not privileged.
A party is entitled to discovery of both material that is relevant and will be admissible at trial, as well as any information “that appears reasonably calculated to lead to the discover of admissible evidence.”
Electronic Discovery/ESI
Electronic discovery refers to discovery regarding the exchange of electronically stored information, or ESI.
ESI that is potentially relevant should be placed on a legal hold to ensure that the data will not be destroyed.
The court may impose sanctions were electronically stored information that should have been preserved in the anticipation of litigation is lost because a party failed to make reasonable steps to preserve it and cannot be restored or replaced.
However, a court will NOT impose sanctions on a party for losing electronically stored information as the result of a routine, good faith operation of the electronic system.
Sanctions for Spoliation of ESI
The court may impose sanctions that are no greater than necessary to cure the prejudice to the other party.
If a party acted with intent to destroy ESI, the following sanctions may be imposed:
(1) presume that the lost information was unfavorable to the party;
(2) instruct the jury that it may or must presume the information was unfavorable to the party; or
(3) dismiss the action or enter a default judgment.
Voluntary Dismissal
A plaintiff may dismiss a case voluntarily by notice before the defendant serves an answer or a motion for summary judgment.
The first voluntary dismissal is without prejudice, however, a second voluntary dismissal serves as an adjudication on the merits.
Establishing Personal Jurisdiction Via Service in the Forum State
A ∆ who is served with process while in the forum state is likely to be subject to the court’s personal jurisdiction even if his or her presence in the state is temporary or entirely unrelated to the lawsuit.
However, if the ∆’s presence in the forum state is solely due to force, fraud, or participation in another judicial proceeding, service may NOT establish personal jurisdiction.
Sue Sponte Monetary Sanctions
Judges may enter monetary sanctions on their own motion (sua sponte), however, they may do so only after entering a show-cause order (before the claim is dismissed or settled) and giving the lawyers a reasonable opportunity to respond.
Instructing a Witness Not to Answer
A lawyer may do so only when necessary to (1) preserve a privilege, (2) to enforce a limitation ordered by the court, or (3) to present a motion.
Otherwise, the witness must be allowed to answer the question, even if the answer ultimately will be deemed to be inadmissible.
The answer is taken subject to the objection, which the court can rule upon later, if necessary.
Forum Non Conveniens
A court can dismiss an action of its own accord when the chosen forum would be seriously inconvenient and there is an adequate other forum available.
Dismissal on the basis of the forum non conveniens doctrine is appropriate when there is a much more convenient forum outside the United States federal court system.
Class Action Diversity
Under the Class Action Fairness Act, in class actions where the class contains over 100 people and the amount in controversy exceeds $5,00,000, diversity only has to be “minimal.”
At least one plaintiff has to be diverse from at least one defendant.
Rule 11 Grounds for Sanctions
Under Rule 11, an attorney who presents a pleading to the court certifies that to the best of her knowledge, information, and belief:
(1) the document is not being presented for any improper purpose;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are either warranted on the evidence or are reasonably based on belief or a lack of information.”
“Valid Final Judgment on the Merits” for Preclusion
A judgment, decision, or ruling that a court will make based on the law, after hearing all of the relevant facts and evidence presented in court. Will prevent parties from re-litigating an issue under claim or issue preclusion if all other elements are met.
What is not a VFJM?: Any dismissal without prejudice — for either lack of SMJ, PJ, improper venue, failure to join a party, or voluntary dismissal.
What is a VFJM?: Any final judgment, order, or dismissal with prejudice.
Forum Selection Clauses/Choice-of-Law Clauses
Under the Second Restatement of Contracts, contract may expressly stipulate that the laws of a particular state shall govern all rights and obligations arising under the contract.
Such a stipulation is deemed valid and enforceable unless the chosen state has NO substantial relationship to the parties/transaction and there is no other reasonable basis for that choice of forum.
Or, if it is contrary to a fundamental policy of the forum which has a materially greater interest than the chosen state and which would be the state of the applicable law in absence of an effective choice of law by the parties.
Specific Jurisdiction
Where there are only a few contacts with the state, the contacts must directly relate to the cause of action asserted.
A nonresident ∆ is subject to specific jurisdiction when the ∆ purposefully availed themselves to the privilege of conducting activities in the state, such that exercise of jurisdiction would be foreseeable.
In determining fairness, the court will consider:
- The burden on the ∆;
- The interests of the forum state;
- The π’s interests in obtaining relief;
- The interstate judicial system’s interest in efficiency; and
- The shared policy interests of the states.
Personal Jurisdiction; Stream of Commerce
Jurisdiction under a long-arm statute must satisfy constitutional requirements: the ∆ must have such minimum contacts with the forum state so as to not offend the traditional notions of fair play and substantial justice.
Merely placing a product in the stream of commerce with awareness that it may reach a particular state is not sufficient to exercise jurisdiction.
“Same Transaction or Occurrence”
A claim arises out of the same transaction or occurrence if they arise out of a common nucleus of operative fact.
Domestic Relations Issues
Generally, federal courts do not hear domestic relations cases — State law and courts control matters of divorce, child custody, and support.
However, federal courts may hear matters of state contract, tort, or other issues DERIVING FROM domestic relations issues.
Permissive Joinder
Permissive joinder allows multiple plaintiffs to join together in a single action and allows multiple defendants to be sued in a single action.
Multiple persons may be joined together in one action if the claims arise out of the same T/O and any question of law or fact is common to all plaintiffs.
Pre-Answer Motions
If an objection will be raised by motion, rather than in a responsive pleading, the motion must be made before a responsive pleading is made. These are called pre-answer motions.
Pre-answer motions include:
- A motion to dismiss.
- A motion for a more definite statement.
- A motion to strike.
Difference Between an Impleader Claim for Indemnity vs. an Impleader Claim for Contribution
An impleader claim for indemnity shift’s ALL of the defendant’s liable onto a new party. An impleader claim for contribution against a joint tortfeasor shifts SOME or PART of the defendant’s liability onto a new party.
Interpleader
Interpleader is used where a plaintiff has some holding that would expose the plaintiff to multiple liability from adverse claims.
Only applicable where multiple parties are seeking the SAME THING; usually the same piece of property, or most commonly the proceeds of an insurance policy.
Class Action Fairness Act
Class actions based on diversity are governed by CAFA. CAFA expands subject-matter jurisdiction to classes where there are more than 100 people, there is minimal diversity, meaning that only one member of the class is diverse from at least one defendant, and the amount in controversy exceeds $5,000,000.ƒ
Attorney Word Product
Any documents prepared in anticipation of litigation by the attorney or its representative. Privileged; generally not discoverable.
May be discoverable upon a showing that the opposing party has both a substantial need for the material to prepare its case and they cannot, without undue hardship, obtain the equivalent elsewhere.
Physical or Mental Examinations
A discovery tool that is only used when a party’s condition is in controversy.
The only discovery tool that requires an advance court approval. The court will approve a request for a physical or mental exam when the physical condition is at issue and there is a showing of “good cause”.
License vs. Profit
A license is generally revocable, while a profit is not. A license is the ability to use, while a profit is the ability to take.
Quasi In Rem
Quasi in rem jurisdiction applies where a court cannot exercise in personam jurisdiction due to there not being a sufficient long-arm statute in place, but where there is property in the forum state that is attached as part of the relief requested.
There must still be minimum contacts and a finding that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.
Original Jurisdiction
Article III of the Constitution provides that the U.S. Supreme Court has original jurisdiction over cases involving foreign ambassadors, cases involving other public ministers and consuls of foreign countries, and cases in which a state is a party.
The Supreme Court has held that Congress cannot give the Court original jurisdiction over any other type of case.
