Federal Civil Procedure

Question 1

Scope of Discovery

Answer 1

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. Information within the scope of discovery need not be admissible in evidence to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense.

In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Question 2

Waiver of SMJ

Answer 2

Lack of SMJ can be raised by any party at any time, including the court.

No waiver for lack of SMJ, and lack of SMJ cannot be waived by failing to object or by affirmative consent.

Question 3

Removal v. Transfer

Answer 3

REMOVAL moves case from state court to federal court
Removal is proper only if the case should have been brought originally in federal court and only a defendant may remove, but ALL defendants must consent to removal within 30 days.
o Removal based on Federal question: look to the well pleaded complaint- does the federal question appear on the face of the well-pleaded complaint without making conclusory statements
o Removal based on diversity is proper only if the AIC & complete diversity requirements are met and the action is brought in a state in which no defendant is a citizen.

TRANSFER moves case from one Federal Court to another federal court

Question 4

Discovery: ESI and Failing to Preserve ESI

Answer 4

A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information.

A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation.

If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order sanctions against the wrongful party.

The court may: (i) upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice, or (ii) upon finding that the party acted with the intent to deprive another party of the information, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action or enter a default judgment.

Question 5

Exceptions to Discovery

Answer 5

Work product: documents prepared in anticipation of litigation or for trial.

REMEMBER: you can NEVER discover the mental impressions of an attorney, BUT this rule creates a qualified immunity from discovery that can be overcome only if the party seeking discovery shows a need for the document or things; and that the information cannot be obtained elsewhere.

Question 6

Oral Depositions

Answer 6

Questions are asked and answered orally and under oath. Limited to 10 depositions, unless the court allows more.

Each is limited to one day of seven hours, unless the court allows more.

Question 7

Written Deposition

Answer 7

Questions asked in writing are delivered to an officer who asks the questions orally and the witness answers orally under oath. Rarely used because they are so inflexible

Question 8

Interrogatories

Answer 8

Questions asked in writing to be answered under oath in writing that may only be used against a party.

Presumptively limited to 25 interrogatories, unless the court allows more. Responses required within 30 days.

Question 9

Request to Produce and Permit Inspection

Answer 9

Applies only to document, things, and land under the control of the party. The thing to be produced and inspected must be described with particularity. Response is due within 30 days

Question 10

Physical & Mental Examinations

Answer 10

Available only against a party and are only permitted when the parties physical or mental condition is in controversy. Only for good cause shown

Question 11

Requests for Admission

Answer 11

A written request that someone admit certain matters.

A failure to respond within 30 days is an admission.

BUT, if the responding party states that she has made a reasonable inquiry and cannot find enough information from which to admit or deny, she can state that she doesn’t know the answer.

Question 12

Supplemental Jurisdiction

Answer 12

Allows a federal court with subject matter jurisdiction over a case to hear additional claims over which the court would not independently have jurisdiction if all of the claims constitute the same case or controversy (i.e., if they arise out of the same common nucleus of operative fact)

A counterclaim does not have to meet the $75,000 requirement if the counterclaim is compulsory (i.e. arises out of the same transaction or occurrence

Cross Claims need an independent basis and must be related to a claim over which the court has subject matter jurisdiction (i.e., “anchoring” claim)

Question 13

Pretrial Conference

Answer 13

Pretrial Conference must be attended by attorneys who will conduct the trial.

Each side must file a pretrial statement detailing claims and defenses, itemization of damages, requests for stipulations and admissions, list of all witnesses and exhibits, etc.

Failure to comply usually means that the attorney pays the costs and the other side’s attorney’s fees

Question 14

PJ Rule Statement

Answer 14

GENERAL RULE: In personam jurisdiction (“IPJ”) refers to the court’s ability to exercise power over a particular defendant. Traditionally, IPJ is based upon where the individual party is domiciled, presence in the state when served, and consent.

If no traditional basis for PJ exists, the court must determine whether the basis for exercising PJ over an out-of-state defendant (1) has been authorized by statute, and (2) is permitted by the due process clause of the US Constitution.

STATUTE PRONG
Analyze statute, if provided, or “no long arm statute was provided in the facts, but if State A has a long arm statute similar to California, then the court would have jurisdiction over any person they could constitutionally exercise jurisdiction over.”

CONSTITUTIONAL PRONG
Even if a statute grants the state court IPJ over the defendant, such exercise must still be constitutional. To be constitutional, there must be sufficient contacts with the forum state so as to not offend the traditional notions of fair play and substantial justice. This is determined by looking at three factors: Minimum Contacts, Relatedness, and Fairness.

Minimum Contacts: Purposeful Availment and Foreseeability

Relatedness: Specific jurisdiction exists where the claim is related to the defendant’s contact with the forum. Otherwise, General jurisdiction exists when the defendant is “at home” in the forum.

Fairness (Specific jurisdiction only): Convenience of the defendant, the state’s interest

Question 15

Waiving PJ

Answer 15

Personal jurisdiction CAN be waived, but only if lack of PJ is raised at the first opportunity:

• 12(b) pre-answer motion to dismiss
• If 12(b) motion not filed, must be raised in the answer.

Question 16

Claim Preclusion

Answer 16

A final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action.

For claim preclusion to apply, the claimant and the defendant must be the same (in the same roles) in both the original action and the subsequently filed action. Claim preclusion is limited to the parties (or successors in interest), similar action by a different party would not be precluded.

(1) Same Claimant Suing the Same Defendant
(2) The first case ended in a Valid, Final Judgment on the Merits
(3) Case 1 and Case 2 Must Be the “Same Claim”

Question 17

Claim Preclusion

Answer 17

A final judgment on the merits of an action precludes the same parties from successive litigation of an identical claim in a subsequent action.

For claim preclusion to apply: (1) the claimant and the defendant must be the same (in the same roles) in both the original action and the subsequently filed action, (2) the original action must have ended in a valid, final judgment on the merits, and (3) both actions must assert the same claim.

When is a judgement on the merits?
Any judgment is “on the merits” unless it was entered “without prejudice”, it was based on a lack of jurisdiction (both personal and subject matter), improper venue, or a failure to join an indispensable party.

Question 18

Claim Preclusion

Answer 18

A final judgment on the merits of an action precludes the same parties from successive litigation of an identical claim in a subsequent action.

For claim preclusion to apply: (1) the claimant and the defendant must be the same (in the same roles) in both the original action and the subsequently filed action, (2) the original action must have ended in a valid, final judgment on the merits, and (3) both actions must assert the same claim.

When is a judgement on the merits?
Any judgment is “on the merits” unless it was entered “without prejudice”, it was based on a lack of jurisdiction (both personal and subject matter), improper venue, or a failure to join an indispensable party.

When are claims the same?
Majority view (including federal law): a claim is any right to relief arising from a transaction or occurrence.
Minority view (“primary rights doctrine”): Separate claims for property damage and for personal injuries that arise in a single event.

Question 19

Issue Preclusion (Collateral Estoppel)

Answer 19

precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim.

Question 20

Issue Preclusion (Collateral Estoppel)

Answer 20

Precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim.

For issue preclusion to apply: (1) The first case must have ended in valid, final judgment on the merits, (2) the issue must actually have been litigated in the first case, (3) the issue must have been essential to the judgment in the first case, (4) the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action, and (5) issue preclusion is being used by someone who was a party (or in privity with a party) in the original case.

However, trial courts have broad discretion to determine when issue preclusion should apply. If a plaintiff could easily have joined in the earlier action, a trial judge may not allow use of offensive collateral estoppel (issue preclusion).

Question 21

Removal Jurisdiction

Answer 21

The defendant in any civil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed as long as the civil action is within the original jurisdiction of a U.S. district court.

Federal courts may exercise original diversity jurisdiction over actions when (i) the parties to an action are citizens of different states and (ii) the amount in controversy in the action exceeds $75,000.

Question 22

Venue and Forum Selection

Answer 22

A district court may transfer any civil action to any other district or division where it might have been brought for the convenience of the parties and in the interests of justice.

Venue is proper in a judicial district in which any defendant resides, where a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.

If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and in the interests of justice.
- Burden is on the party seeking transfer
- The court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law.

If the original district is an improper venue, the court may transfer in the interest of justice or dismiss.

When venue is transferred based on a valid forum selection clause, transferee court must apply the law, including the choice-of-law rules, of the transferee venue.

Question 23

Choice of Law & Erie

Answer 23

If there is no Federal Statute or law on point, the court must determine whether to follow state law (i.e., the matter is deemed “substantive”) or to follow federal law (i.e., the matter is deemed “procedural”).

The general rule is to follow state law for substantive issues that govern conduct (i.e. burdens of proof, statutes of limitations, permissible defenses, etc.) and to follow federal procedural law (i.e., timing requirements)

Question 24

Intervention & Joinder

Answer 24

A nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action, (2) the disposition of the action may impair the nonparty’s interests, and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.

Question 25

TROs

Answer 25

A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction.

A TRO has immediate effect and lasts no longer than 14 days unless good cause exists to extend it (for no more than 28 days).

A TRO can be issued without notice to the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reason why notice should not be required.

The party seeking a TRO must post a bond to cover the costs in the event the TRO is issued wrongfully.

If a TRO extends beyond the 28 day time limit, court will treat it as a preliminary injunction (note: immediately appealable)

Question 26

Preliminary Injunctions

Answer 26

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue.

A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits, (2) the party is likely to suffer irreparable harm in the absence of relief, (3) the balance of equities is in his favor, and (4) the injunction is in the best interest of the public.

Additionally, the party seeking the preliminary injunction must provide a bond to cover the costs in the event the preliminary injunction is issued wrongfully.

Question 27

Answers & Pre-Answer Motions

Answer 27

Generally, the Defendant’s answer must state any affirmative defense that the defendant has, or it is deemed waived.

However, the Rules also provide that pleadings can and should be amended by leave of the court when justice requires it. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.

Question 28

Joinder

Answer 28

All claims between the same plaintiff and the same defendant may be joined

PERMISSIVE JOINDER
Any number of plaintiffs or defendants may join if they assert claims arising out of the same transaction or occurrences and there was a common question of law or fact.

COMPULSORY JOINDER
Necessary and indispensable parties must be joined if feasible.

A necessary party is a person whose participation in the lawsuit is necessary because (1) absent that party, complete relief cannot be accorded to the existing parties, (2) the necessary party has an interest in the litigation which will be impeded if the litigation goes forward without that party, or (3) there is a substantial risk of double or inconsistent liability.

Joinder is feasible if it will not deprive the court of SMJ and the court can assert personal jurisdiction over the necessary party.

If a necessary party cannot be joined, the court decides whether to: Continue without the necessary party (typically the case) or Dismiss the suit (rare) (i.e., the party is described as being indispensable)

Question 29

Intervention

Answer 29

A nonparty absentee uses intervention to bring herself into the case.

INTERVENTION OF RIGHT
If the absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties, intervention is “of right.”

PERMISSIVE INTERVENTION
May be allowed whenever there is a common question of law or fact between the intervenors claim and the main claim. In the court’s discretion, but usually allowed unless it would cause delay and unfair prejudice.

Intervention must be timely and the standard is “reasonable promptness”

There is no supplemental jurisdiction for either kind of intervention when jurisdiction is based on diversity.

Question 30

Interpleader

Answer 30

Interpleader applies if separate actions might result in double liability against a stakeholder. An interpleader suit permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it.

There are two interpleader procedures in the federal courts:
RULE 22 INTERPLEADER requires: (1) complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue, or (2) a federal question claim. Normal service and venue rules apply.

STATUTORY INTERPLEADER requires only diversity between any two contending claimants and $500 be in issue. Service may be nationwide and venue is proper where any claimant resides.

Question 31

Impleader

Answer 31

An impleader claim is one where a defending party is bringing in a new party. An impleader claim is used to shift to the the liability that the defendant will owe to the plaintiff to the new party.

An impleader claim is permissive, meaning that the defendant need not bring it in the current case.

To implead a third party, the defendant must (1) file a third-party complaint naming the new party and (2) have that complaint formally served (that is, served like an original complaint) on the TPD. There is a right to implead within 14 days of serving the answer. After that, court permission is needed.

Question 32

Class Actions

Answer 32

Prerequisites for a class action are numerousness, common question of law or fact, typicality of claims by the class representatives, and adequacy of representation.

Burden is on proponent of class certification to establish that these prerequisites are met

If class action is brought under diversity jurisdiction, named representatives must be completely diverse from defendants and at least one plaintiff has a claim worth over $75,000.

The Class Action Fairness Act (CAFA) Allows very large class actions, involving at least 100 members with more than 5 million at stake. Only minimal diversity required (i.e. any plaintiff diverse from any defendant)

Question 33

JMOL and RJMOL

Answer 33

JMOL is essentially a motion for summary judgment after the trial has begun.

Standard: viewing the evidence in the light most favorable to the other party, the evidence cannot support a verdict for that party, and the moving party is therefore entitled to judgment as a matter of law.

RJMOL is made at the close of all of the evidence and denied by the court may be renewed after the jury returns a verdict.

The Standard is the same as JMOL, but a prior motion is required: it is a condition precedent to a post-verdict motion that the motion for JMOL has been made at the close of all evidence

Question 34

Motion for a New Trial

Answer 34

A motion for a new trial is usually made with RJMOL

A new trial can be granted for legal errors, newly discovered evidence, prejudicial misconduct by a lawyer, party, or a juror, or the judge concludes that the verdict is against the great weight of the evidence, either in substance of the verdict or amount of damages awarded.

If the court determines that a verdict was seriously excessive, then it may offer a remittitur to reduce the verdict and Grant a new trial on the condition that the remittitur is not accepted.

Note: can decrease, but cannot increase award

Question 35

Appeals

Answer 35

FINAL JUDGEMENT RULE: Ordinarily, appeals are available only from a final judgment. A judgment becomes final when entered by clerk on the court docket (i.e., not when announced)

A notice of appeal must be filed within 30 days

Interlocutory Orders are immediately appealable as of right, including any order granting or modifying an injunction and any order that changes or affects possession of property

Collateral orders are also immediately appealable if the order conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable upon appeal

Standards of Review
Questions of Law—Appellate review is de Novo
▪ Ask: Did the trial court make an error? Was the error prejudicial?

Findings of Fact look to determinations of the fact-finder
▪ Jury verdict must be affirmed if sponsored by substantial evidence
▪ Judge’s findings of fact must be affirmed unless they are clearly erroneous.

Matters of Discretion
▪ Standard of appellate review is abuse of discretion.
▪ Any reasonable decision will be upheld.
▪ Admissibility of evidence—abuse of discretion