FEDERAL CIVIL PROCEDURE

Question 1

Basic Idea for SMJ and Question to ask for it:

Answer 1

This is about the court’s power over the claims in the action

We know P will sue D in State X. Now the question is: in what court in State X (state court or federal court)?

Question 2

State’s Jurisdiction to hear a case

Answer 2

State courts can hear any kind of case (minor exception below). They have “general” SMJ.

Question 3

What are cases that State Law cannot hear?

Answer 3

Cases arising under a few federal laws must be brought in federal court – e.g.,

• patent infringement,
• bankruptcy,
• some federal securities and antitrust claims.

But most cases arising under federal law can be heard by state courts.

Question 4

What are the two main types of cases that can be heard in federal court?

Answer 4

1. Diversity of Citizenship; or
2. Federal Question

Question 5

Diversity of Citizenship Cases

Answer 5

1. The case is either: the plaintiff(s) and the defendant(s) are “citizens of different states” (diversity) or between the plaintiff(s) and the defendant(s) are “a citizen of a state and a citizen of a foreign country” (alienage) and
2. The amount in controversy exceeds $75,000.

Question 6

Who are the right kinds of litigants for a diversity or alienage case?

Complete Diversity Rule

Answer 6

Complete diversity rule. No good if any P is a citizen of the same state as any D

Question 7

Suppose we have an alien admitted to the U.S. for permanent residence (a so-called “green card” alien). She is domiciled in a U.S. state. Is she considered an alien or a citizen of that U.S. state?

Answer 7

Alien

• – So litigation with her might invoke alienage, but not diversity.

Question 8

P (a U.S. citizen domiciled in Japan) sues D (CA) in federal court. OK?

• • Is there alienage?
• • Is there diversity of citizenship?

Answer 8

No alienage - because P is not an alien

No diversity, because P is not a citizen of a U.S.
state

Question 9

How do you establish a new domicile? It takes two things:

Answer 9

1. Physical Presence there AND
2. The intent to make that your permanent home

Question 10

Relevant Factors for Intent to make a place your home

Answer 10

For intent, courts look to all relevant factors –

• like taking a job,
• buying a house,
• joining civic organizations,
• registering to vote,
• qualifying for instate tuition.

Question 11

P (OH) decides to move permanently to GA. She accepts a job in GA and tells everyone that she intends to live the rest of her life in GA. While driving to GA, she is involved in an auto collision in KY. She is hospitalized in KY. If
she sued now, what is P’s citizenship?

Answer 11

Ohio - because she has not been present in GA

Question 12

P (NJ) sues D (DC). After filing, P becomes a citizen of DC. Does that mean diversity is destroyed now that it’s DC versus DC?

Two Rules for this Hypo

Answer 12

No – diversity is OK.
There are two rules from this hypo:

1. We treat DC as a State
2. Test for diversity when the case is filed

Question 13

When do we determine domicile and when don’t we?

Answer 13

So we do not care what happens to citizenships after the case is filed or what the citizenships were before the case was filed.

Question 14

Citizenship of a corporation. What is/are the citizenship(s) of a corporation?

Answer 14

1) The State or Country where incorporated AND
2) The State or Country of its one PPB (“Nerve Center”)

Question 15

Citizenship of an unincorporated association (like partnership or limited liability company (LLC)). What is its citizenship?

Answer 15

The citizenship of all its members

Question 16

XYZ Partnership has partners who are citizens of 18 states. What is XYZ Partnership’s citizenship?

Answer 16

All 18 States

Question 17

Do we care where XYZ Partnership was formed or has its PPB?

Answer 17

No

Question 18

If it’s a limited partnership, do you include the citizenships of the general and the limited partners?

Answer 18

Yes, you include ALL partners

Question 19

Citizenship of decedents, minors, or incompetents

Answer 19

Such persons must sue or be sued through a representative.

The representative’s citizenship is irrelevant.

Use the citizenship of the decedent, minor, or incompetent.

Question 20

Amount in controversy.

Answer 20

In addition to complete diversity or alienage, P’s claim must exceed $75,000.

Question 21

Is there any limit on the number of claims that can be aggregated?

Answer 21

No

Question 22

Equitable relief.

P sues D for an injunction to tear down part of his house that blocks P’s view. Two tests; if either is met, most courts say it’s OK:

Answer 22

1. – Plaintiff’s viewpoint: does the blocked view decrease the value of plaintiff’s property by more than $75,000?
2. – Defendant’s viewpoint: would it cost defendant more than $75,000 to comply with the injunction?

Question 23

Exclusions

Answer 23

Exclusions – even if the requirements for a diversity or alienage case are met, federal courts decline to hear some cases.

1) Divorce
2) Alimony
3) Child Custody
4) To probate & estate

Question 24

Federal Question Cases.

Answer 24

The claim in P’s complaint “arises under” federal law (e.g.,
federal constitution, legislation).

Question 25

“Well pleaded complaint” rule.

Answer 25

It is not enough that some federal issue is raised by the
complaint. The P’s claim itself must “arise under” federal law. So we look at the claim and ignore other material P alleged.

Ask: Is the P enforcing a Federal Right? (A federal law is not enough)

Question 26

Once a case is properly in federal court (under diversity or FQ), do we have to test every single additional claim for federal subject matter jurisdiction?

Answer 26

Yes

So every single claim in federal court must have federal subject matter jurisdiction. If it does not, it cannot be asserted in the pending case in federal court. That means that every single additional claim is tested to see if it invokes:

• Diversity
• FQ

Question 27

Federal Common Law

Answer 27

Erie means there is no GENERAL federal common law. So
the general common law of contracts, torts, and property is STATE law, and federal courts must apply that state substantive law.

But there are areas in which federal courts are free to make up common law on their own.

Question 28

Supplemental jurisdiction

Answer 28

The type of jurisdiction a federal court with original jurisdiction over at least one claim in an action may have over certain other claims in the same action for which no original jurisdiction exists

Question 29

Supplemental jurisdiction (Federal Question)

Answer 29

A court may exercse supplemental jurisdiction over a nondiverse state law claim as long as the additional claim arises out of the same transaction or occurrence
(Applies to a plaintiff or defendant)

Question 30

Supplemental jurisdiction (Diversity cases)

Answer 30

Plaintiffs:
- No plaintiff can bring a supplemental claim that would destroy complete diversity between adverse parties

Existing Plaintiffs:
- An existing plaintiff that later seeks to add a nondiverse state claim against one or more defendants is not eligible for supplemental jurisdiction

Defendants:
- All defendant’s factually related state law claims can be brought under the court’s supplemental jurisdiction (includes cross-claims, counterclaims, third-party claims)
- Do not need to meet the complete diversity requirement or AIC requirement

Question 31

Removal jurisdiction

Answer 31

The type of jurisdiction a federal court may have over a claim, in which the defendant is afforded the opportunity to overturn the plaintiff’s choice of a state court forum, where the state court action initially could have been filed in federal court because it contains a claim over which the federal court has original jurisdiction

Question 32

Forum-Defendant Rule

Answer 32

The rule that bars removal of a state court action to federal court under diversity jurisdiction if any defendant is a citizen of the state where the state court action was filed

Question 33

Unanimity (Removal)

Answer 33

The rule that all defendants who have been properly served in a state court action in which all claims are removable to federal court must join in or consent to the removal.

Question 34

PJ is about the court’s power over…

Answer 34

the parties

Question 35

Court’s power over the plaintiff

Answer 35

Because P filed the case, the court automatically has power over P.

Question 36

PJ involves one question:

Answer 36

can P sue D in this state?

Question 37

Whether there is PJ is a two-step analysis:

Answer 37

1. Satisfy a state long-arm statute AND
2. Satisfy the Constitution (Due Process).

Question 38

In Personam Jurisdiction

Answer 38

P sues to impose a personal obligation on D.

Question 39

Statutory Analysis of in Personam Jurisdiction

Answer 39

Each state is free to have its own long-arm statutes for in personam
jurisdiction. Because they vary, the content of such a statute is not testable on the MBE. Anyway, in most states, the statute says jurisdiction is OK if the case meets the
constitutional test.

Question 40

Constitutional analysis for in Personam Jurisdiction

Answer 40

Does D have “such minimum contacts with the forum” so jurisdiction does not offend traditional notions of fair play and substantial justice”?

Question 41

PJ is clearly
constitutional if D is:

Answer 41

(1) domiciled in the forum or
(2) consents or
(3) is voluntarily present in the forum when served with process.

Question 42

If the Defendant is (1) NOT domiciled in the forum or (2) DOESNT consent or (3) ISNT voluntarily present in the forum when served with process - then we assess personal jurisdiction by assessing:

Answer 42

RELATEDNESS - CONTACT – FAIRNESS

Question 43

Contact

Answer 43

There must be a relevant contact between D and the forum state.

Question 44

Two Factors for Contact

Answer 44

1. The contact must result from purposeful availment
2. Foreseeability

Question 45

Purposeful Availment

Answer 45

• Ds voluntary act
• Defendant must reach out to the forum (cannot be an accident)

Question 46

Foreseeability

Answer 46

It must be foreseeable that defendant could get sued in this forum

Question 47

Relatedness between this contact and P’s claim. Ask this:

Answer 47

Does the Ps claim arise from the Ds contact with the forum?

Question 48

Specific jurisdiction

Answer 48

The type of personal jurisdiction a forum state may have over a defendant when (1) the defendant’s activities or contacts in that state gave rise to the cause of action at issue, (2) the defendant has minimum contacts with that state, and (3) the exercise of jurisdiction is supported by the due process standard of reasonableness

Question 49

General jurisdiction

Answer 49

The type of personal jurisdiction a state may have over a defendant in which the defendant is subject to suit in that state on any cause of action, irrespective of whether there is a connection between the defendant’s activities or contacts in the state and the cause of action

D must be domiciled (“at home”) in the forum

Question 50

Fairness gets asserted when?

Answer 50

In specific PJ cases only

Question 51

How to determine fairness

Answer 51

1. Burden on D and witnesses
   
   • the forum is constitutionally OK unless D can show that it puts him at a severe disadvantage in the litigation.
     
     • This is a very difficult burden
       to meet
     • The relative wealth of the parties is not determinative
2. State’s interest
   
   • The forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters.
3. Plaintiff’s interest
   
   • Maybe injured and wants to sue at home.

Question 52

In Rem and Quasi in Rem Jurisdiction

Answer 52

In Rem:
- Allows courts to settle claims from all possible claimants (known and unknown, parties and nonparties) involving real and personal property within the borders of the forum state

Quasi in Rem:
- Allows courts to settle claims among the parties to the proceeding to property in the forum state

Question 53

Basic Idea of Venue

Answer 53

Subject matter jurisdiction told us we can take a case to federal court. Venue tells us exactly which federal court. The country is divided into federal districts. P is suing in federal court and wants to lay venue in a proper district.

Question 54

P may lay venue in any district where:

Answer 54

1. any defendant resides; or
2. a substantial part of the events or omissions arose/occurred or where a substantial part of the property that is the subject of the action is located

Question 55

Do these venue choices apply in a removed case?

Answer 55

NO – remember, in a removed case, venue was set in the district that embraced the state court.

Question 56

Where Do Defendants “Reside” for Venue Purposes?

Answer 56

Individuals: Where Domociled

Corporations: Anywhere PJ will apply

• PPB
• Incorporated

Question 57

Transfer of Venue

Answer 57

A federal district court may transfer the case to another federal district court. The original court is the “transferor” and the one to which the case is sent is the “transferee.”

IMPORTANT: It can only transfer to a district where the case could have been filed.

• The transferee must be a proper venue and have PJ over the D
• Exception:
  
  • the court can transfer to any district (even an improper venue) if all parties
    consent (unlikely that P will do so) and the court finds cause for the transfer.

Question 58

2 different approaches to analyze transfer of venue

Answer 58

1. If the original district filed in was the proper venue
2. If the original district filed in was an improper venue

Question 59

If the original district is a proper venue, that court can order transfer based on…

Answer 59

convenience of parties and witnesses and on the interest of justice.

Question 60

Is there ever a right to transfer?

Answer 60

No, always discretionary

Question 61

What factors does the court look to in deciding whether to transfer the case? and who bears the burden?

Answer 61

Because transfer overrides P’s choice of forum (and because P chose a proper venue), the burden is on the person seeking transfer.

Public and Private factors showing that the transferee is the center of gravity

Question 62

Public Factors for Transfer of Venue

Answer 62

• what law applies,
• what community should be burdened with jury service,
• the desire to keep a local controversy in the local court.

Question 63

Private Factors for Transfer of Venue

Answer 63

convenience

Also where the evidence and witness’ are

Question 64

Forum Selection Clause

Answer 64

One important factor in favor of transfer is the existence of a valid forum selection clause. If the parties entered a K saying that a dispute will be litigated in a particular district, the court will almost always transfer to that district. The
parties are deemed to have agreed that the private factors support litigation in that district.

Question 65

If the original district is an improper venue, what may that court do?

Answer 65

It may transfer in the interest of justice OR dismiss

Question 66

Forum Non Conveniens

Answer 66

Like transfer, there is another court that is the center of gravity, that makes more sense than the present court.

Question 67

What does the Court do in Forum Non Conveniens

Answer 67

It dismisses or stays the case

To stay means hold in abeyance; nothing happens in the case. It just sits there. Whether it dismisses or stays, the idea is that P will then sue in the other court.

Question 68

Reason behind Forum Non Conviens

Answer 68

Because the more convenient court is in a different
judicial system (e.g., a foreign country), so transfer is impossible!

Question 69

How to go about Forum Non Conveins

Answer 69

The decision is based on the same public and private factors as transfer of venue. This requires a strong showing, though, since this results in dismissal or stay.

FNC dismissal almost never granted if P is resident of the present forum.

The other court must be available and “adequate.”

Question 70

Suppose the foreign court does not permit trial by jury or recovery for emotional distress. Do things like that make the foreign court inadequate for Forum Non Conveins?

Answer 70

No - its adequate just so P will get her day in court

Question 71

Basic Idea of notice

Answer 71

D is entitled to notice that she has been sued.

Question 72

What does notice consist of

Answer 72

Usually, this consists of:

1. a summons (formal court notice of suit and time for response) and
2. a copy of the complaint.

These two together is called process.

Question 73

Who Can Serve Process?

Answer 73

Any nonparty who is at least 18 years old.

Question 74

Does the process server have to be appointed by a court?

Answer 74

No

Question 75

Ways of Service

Answer 75

1. Personal service
2. Substituted service
3. Service on D’s agent

Question 76

Personal service

Answer 76

Method of service by which a defendant must be served with original process (papers given to D personally), unless waived by the defendant

Question 77

Where can D be personally served?

Answer 77

Anywhere

Question 78

Substituted service.

Answer 78

Process is left with D’s butler at D’s summer home.

Question 79

When is substituted service permissible?

Answer 79

1) Ds usual abode AND
2) we serve someone of suitable age and discretion
3) who resides there

Question 80

Must D reside there every day of the year for it to qualify as his “usual abode”?

Answer 80

No - common sense approach

Question 81

Must the person on whom service is made be related to D?

Answer 81

No

Question 82

Service on Ds Agent

Answer 82

Process can be delivered to D’s agent. OK if
receiving service is in scope of agency, e.g., corporation’s registered agent, managing agent, or officer.

Question 83

In federal court, can P use substituted or agent service even if personal service would be possible?

Answer 83

Yes

Question 84

Rules for Service under State Law

Answer 84

We can use methods for serving process that are permitted by state law of the state where:

• the federal court sits or
• where service is made.

What is a good example of how state law might apply? To allow service by mail

Question 85

Waiver by mail

Answer 85

Mail to D a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (e.g., stamped envelope for sending it back to P). If D executes and mails waiver form to P within 30 days, D waives formal service of process.

Question 86

If D waives formal service of process, does she waive any defense like lack of PJ?

Answer 86

No

Question 87

How does the waiver become effective?

Answer 87

When D signs and mails the waiver form back to P, She files the waiver in court and it is effective then

Question 88

Suppose D fails to return the waiver form. P then has D served personally or by substituted service. If D did not have good cause for failing to return the waiver form
is there a penalty for D?

Answer 88

Yes - he must pay the cost of service

Question 89

“Return” of Service.

Answer 89

The person who serves process must file a report with the court detailing how service was made. If the server was a civilian, the report is by affidavit (sworn statement, under oath).

If the process server fails to file this report, it does not effect the validity of the service

Question 90

Service of Other Documents

Answer 90

Other documents (e.g., answer, other pleadings, motions,
discovery), get served, but we don’t need a summons or to do it so formally.

We serve these documents by delivering or mailing the document to the party’s attorney (or pro se party – a pro se party is one without a lawyer).

Question 91

Suppose we mail interrogatories to the other party. You have 30 days in which to respond to interrogatories. Do you get extra time to respond if the interrogatories were mailed to you?

Answer 91

Yes - 3 additional days

Question 92

Can you serve other documents by email?

Answer 92

Yes - if the party agrees

Question 93

Erie doctrine

Answer 93

The doctrine, derived from a U.S. Supreme Court case, under which a federal court presiding over a state law claim must apply the state’s common, constitutional, and statutory law, and choice-of-law rules, when deciding a substantive issue for which there is no controlling federal rule or statute

Question 94

Substantive issue

Answer 94

The type of issue that addresses legal rights and often is outcome-determinative, such as an issue pertaining to the elements of a particular claim or defense

Question 95

Procedural issue

Answer 95

The type of issue that addresses the judicial process and often concerns court rules and practices rather than the elements of a particular claim or defense

Question 96

Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek:

Answer 96

a TRO

Question 97

Ex Parte

Answer 97

Whenever a court does something without giving notice to the other party

Question 98

Can the court issue a TRO ex parte?

Answer 98

Yes, in very limited circumstances

Question 99

Ex parte TRO is proper only if:

Answer 99

1. Applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm if he must wait until the other side is heard
2. Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawyer (or why such notice should not be required under the circumstances).

Question 100

If the court issues the TRO, applicant must:

Answer 100

Post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

Question 101

The TRO must state:

Answer 101

The TRO must state:

1. its terms in specificity,
2. describe in detail what D must do or refrain from doing,
3. and state why it was issued,
4. and why the threatened injury to P was irreparable.

Question 102

When must the TRO be served on the D

Answer 102

ASAP

Question 103

If the court issues the TRO, what can D do?

Answer 103

Move to dissolve or modify the TRO

Question 104

How long is a TRO effective for?

Answer 104

TRO is effective for no more that 14 days (or lesser time stated by court).

If Applicant shows good cause before expiration, it can be extended for up to another 14 days.

So a TRO cannot extend beyond 28 days.

Question 105

Is a ruling on a motion for a TRO appealable?

Answer 105

No

Question 106

What does a preliminary injunction do?

Answer 106

Maintains status quo until the court can adjudicate the underlying claim on the merits

Question 107

Basic Idea of Preliminary Injunctive Relief:

P is planning to file suit (or has sued). P is worried that before that case can go to trial, D may do (or fail to do) something that will prejudice P’s case. P wants injunctive relief – a court can order that D either:

Answer 107

To take a certain action or prohibit a party from doing something likely to cause irreparable harm to another party

Question 108

Can a preliminary injunction be granted ex parte?

Answer 108

Never

Question 109

What must be shown for a preliminary injunction?

Answer 109

The burden is on the Applicant to show:

1. He is likely to suffer irreparable harm if the injunction is not issued;
2. He is likely to win on the merits of the underlying case;
3. The balance of hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
4. The injunction is in the public interest.

Question 110

Is there ever a right to an injunction?

Answer 110

No - it is always discretionary

Question 111

What must the applicant do if the court grants a preliminary injunction?

Answer 111

Applicant must post a bond.

Question 112

What may the court do with case in regards to the preliminary injunction?

Answer 112

The court may consolidate the hearing on the motion for preliminary injunction with trial on the underlying case. It may advance trial on the calendar to do so.

Question 113

The preliminary injunction must state:

Answer 113

The preliminary injunction must state:

1. its terms in specificity,
2. describe in detail what D must do or refrain from doing,
3. and state why it was issued.

Question 114

In granting or denying the preliminary injunction, the court must:

Answer 114

make specific findings of fact and separate conclusions of law

Question 115

Is an order granting or denying a preliminary injunction appealable?

Answer 115

Yes

Question 116

Complaint

Answer 116

Filing this commences an action.

Requirements:

1. Statement of grounds of subject matter jurisdiction;
2. Short and plain statement of the claim, showing entitled to relief;
3. Demand for relief sought (e.g., damages, injunction, declaratory judgment)

Question 117

What is the Standard for the Statement of claming stating relief?

Answer 117

Must plead facts supporting a plausible claim, not just a possible claim

Question 118

How can D challenge a complaint?

Answer 118

D can challenge the complaint by making a Rule 12(b)(6) motion

Question 119

What three matters must be pleaded with even more detail – with particularity or specificity?

Answer 119

1. Fraud,
2. Mistake and
3. Special Damages

Question 120

Defendant’s Response.

Rule 12 requires D to respond in one of two ways:

Answer 120

(1) by motion or
(2) by answer.

Question 121

When must D respond to complaint by filing a motion or by answer?

Answer 121

Within 21 days after service of process

Question 122

Consequence to D for failing to respond to complaint by filing a motion or by answer?

Answer 122

Default

Question 123

Consequence of waiving service of process to Ds reponse?

Answer 123

If you waived service, you get 60 days from when P mailed you the waiver form.

Question 124

What are motions?

Answer 124

Motions are not pleadings; they are requests for a court order.

Question 125

Issues of Form Motions

Answer 125

(1) motion for more definite statement – pleading so vague D can’t frame a response (rare);
(2) motion to strike, which is aimed at immaterial or scandalous things.

Question 126

Rule 12(b) defenses

Answer 126

(1) lack of subject matter jurisdiction (SMJ);
(2) lack of PJ;
(3) improper venue;
(4) improper process (problem with the papers);
(5) improper service of process;
(6) failure to state a claim;
(7) failure to join indispensable party.

Question 127

Where can 12b6 Defenses be placed?

Answer 127

These defenses can be put either in a motion to dismiss or in the answer.

Question 128

Which 12b6 Defenses are waivable?

Answer 128

(2) lack of PJ;
(3) improper venue;
(4) improper process (problem with the papers);
(5) improper service of process;

Question 129

Where must waivable defenses be placed?

Answer 129

“WAIVABLE” DEFENSES MUST BE PUT IN THE FIRST RULE 12 RESPONSE (MOTION OR ANSWER) OR ELSE THEY’RE WAIVED.

Question 130

What is the Answer?

Answer 130

It is a pleading

Question 131

D does two things in the answer:

Answer 131

1. Respond to allegations of complaint:
2. Raise affirmative defenses

Question 132

In his Answer, how must D respond to the allegations in the complaint?

Answer 132

(1) Admit;
(2) Deny;
(3) State that you lack sufficient information to admit or deny.

• Number (3) has the effect of a denial, but can you use (3) if the answer is in your control?
  
  • NO – you have a duty to investigate things in your control.
  • So if P alleges something and D knows that the answer is in D’s records, D

must look it up. She cannot say that she does not know.

Question 133

What is D never deemed to admit?

Answer 133

Damages

Question 134

In his Answer, D must raise affirimative defenses:

Answer 134

These inject a new fact into the case, which will
allow D to win.

Classic affirmative defenses are statute of limitations, statute of frauds, res judicata, self-defense.

Question 135

What is a counterclaim?

Answer 135

A claim for relief asserted in a pleading by a defendant against the plaintiff

Once somebody asserts a claim against you, you are opposing parties. Your claim back against that person is a counterclaim. Usually, this is a claim by D against P. The counterclaim is part of D’s answer.

Question 136

After D serves a counterclaim against P, what does P have to do?

Answer 136

P must respond under Rule 12 within 21 days

Question 137

There are two types of counterclaim:

Answer 137

1. Compulsory:
2. Permissive:

Question 138

Compulsory Counterclaim

Answer 138

The type of counterclaim that must be joined to an action, where the counterclaim (1) arises out of the same transaction or occurrence that is the subject of the opposing party’s claim, and (2) does not require joinder of a party over which the court does not have personal jurisdiction.
- Unless you have already filed the claim in another case, YOU MUST FILE THIS IN THE PENDING CASE, OR THE CLAIM IS WAIVED

Question 139

Permissive Counterclaim

Answer 139

The type of counterclaim that may be joined to an action, where the counterclaim does not arise out of the same transaction or occurrence that is the subject of the opposing party’s claim
- Permissive means you are not required to file it in this case. You may sue on it in a separate case

Question 140

SMJ & Counterclaims

Answer 140

Subject matter jurisdiction. We must assess whether it invokes diversity or FQ jurisdiction. If so, it’s OK in federal court. If not, we try supplemental jurisdiction.

Question 141

Cross-claim

Answer 141

A claim for relief asserted in a pleading by one party against a coparty that must arise out of the same transaction or occurrence that is the subject matter of the action, such as a claim for contribution or indemnity brought by a defendant against a codefendant with respect to the claim for relief alleged in the plaintiff’s complaint.
- Cross-claims are not compulsory – you may assert it here or sue separately

Question 142

Can you use supplmental jurisidiction for a cross-claim?

Answer 142

You may use SMJ, but No Supplemental jurisidiction because the claim is not asserted by the P

Question 143

Additional Claims

Answer 143

Once you file a counterclaim or crossclaim (or any claim) you can join an additional claim to it – even if that claim has nothing to do with the others.

This additional claim (like any claim in federal court) must invoke federal SMJ. So you assess whether it invokes diversity or FQ.

If neither diversity nor FQ is met, then try supplemental jurisidiction

Question 144

Amended Pleadings – four fact patterns.

Answer 144

1. Right to amend.
2. If there’s no right to amend
3. Variance
4. Amendment after the statute of limitations has run (“relation back”).

Question 145

Right to amend.

Answer 145

Plaintiff has a right to amend once within 21 days after D serves her first rule 12 response

Question 146

If there’s no right to amend…

Answer 146

If there’s no right to amend, seek leave of court. It will be granted if “justice so requires.”

What factors do courts look to in ruling on this?

• Delay,
• prejudice and
• futility of amendment

Question 147

Variance.

Answer 147

That’s where the evidence at trial does not match what was pleaded.

At or after trial, P can move to amend the complaint to
conform to the evidence.

– This ensures that the pleadings match what was actually tried.

Question 148

Two types permissible of Amendments after the statute of limitations has run (“relation back”).

Answer 148

1. To join a new claim
2. To change a defendant after the statute has run

Question 149

Amendment To join a new claim after the statute of limitations has run (“relation back”): Discuss Relation back

Answer 149

Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading.

Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.

Question 150

Amendment To change a defendant after the statute has run after the statute of limitations has run (“relation back”):

Answer 150

This will relate back if:

1. It concerns the same conduct, transaction, or occurrence as the original;
2. The new party knew of this case within 120 days of its filing; and
3. She also knew that, but for a mistake, she would have been named originally.

– This applies when P sued the wrong D first, but the right D knew about it.

Question 151

Supplemental Pleadings

Answer 151

These set forth things that happened after the pleading was filed. (Amended pleadings are about things that happened before the pleading was filed but were not asserted until later.)

Question 152

Is there a right to Supplemental Pleadings?

Answer 152

No, its always discretionary

But the court will often do so unless it will cause delay or prejudice.

Question 153

Certification: Rule 11

Answer 153

Applies to all documents except discovery (which are treated by another rule).

When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:

1. The paper is not for an improper purpose, and
2. The legal contentions are warranted by law (or nonfrivolous argument for law change), and
3. The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).

In addition, you make this certification every time you “present” a position to the court (e.g., when you later advocate a position taken in the document).

Question 154

If there is a violation (e.g., assertion of a baseless claim), against whom may Rule 11 sanctions be ordered?

Answer 154

The party, the attorney or the firm

Question 155

What must the court do before imposing Rule 11 Sanctions? And what does it usually do?

Answer 155

Before imposing a sanction on you, the court must give you chance to be heard.

Court usually issues an “order to show cause” why sanctions should not be imposed. The court must give a chance to be heard before imposing a sanction on anyone.

Question 156

What is the purpose of Rule 11 sanctions?

Answer 156

To deter, not to punish

Question 157

Monetary Santions under Rule 11

Answer 157

Often, courts impose non-monetary sanctions (e.g., require lawyer to attend professionalism classes). Monetary sanctions, if any, are often paid to court, not to
the other party.

Question 158

If the other party violates Rule 11, can you make a motion for sanctions immediately?

AKA how do you go about imposing Rule 11 Sanctions

Answer 158

No

You serve the motion on other parties but cannot file it. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed.

Question 159

Can the court raise Rule 11 problems on its own (“sua sponte”)?

Answer 159

Yes

Question 160

Permissive joinder (Parties)

Answer 160

The type of joinder in which an additional party may be joined in a pending action where the court has personal jurisdiction over the additional party, the claims against the additional party arise out of the same transaction or occurrence that is the subject of the existing claims in the pending action, and there is a substantial question of law or fact in common between the claims against the additional party and the existing claims

Question 161

Compulsory Joinder (Parties)

Answer 161

The type of joinder in which an additional party must be joined in a pending action where the court has personal jurisdiction over the additional party, the additional party’s joinder would not deprive the court of subject-matter jurisdiction, and the additional party is considered a necessary party to the action

Question 162

Necessary party

Answer 162

A person whose absence from a pending action will mean that the court cannot grant relief among the existing parties to the action, or a person who claims an interest related to the action and whose absence may impair the person’s ability to protect that interest or may subject an existing party to a substantial risk of additional or inconsistent liability because of that interest

Question 163

Indispensable party

Answer 163

A necessary party who cannot be joined to a pending action, for jurisdictional reasons or otherwise, and without whom the court must dismiss the entire action

Question 164

Interpleader

Answer 164

The procedure whereby a party stakeholder who knows there are multiple claimants to property or money in the party’s possession can avoid multiple liability by requiring all such claimants to join in one civil action

Question 165

Rule interpleader

Answer 165

The type of interpleader in which the usual subject-matter jurisdiction and venue rules apply

Question 166

Statutory interpleader

Answer 166

The type of interpleader in which the usual subject-matter jurisdiction and venue rules are relaxed

Question 167

Intervention

Answer 167

The procedure whereby a person not named as a party in a pending action can join that action on the person’s own initiative to present a claim or defense relevant to that action

Question 168

Impleader

Answer 168

The procedure whereby a party in a pending action joins a nonparty by filing a third-party complaint against the nonparty that asserts a claim of relief, typically alleging that the nonparty is liable to the party for indemnity or contribution on the claims at issue in the pending action

Question 169

Class Action

Answer 169

The procedural mechanism in which one claimant or a small group of claimants are certified by the court to represent a larger group of persons, all of whom share a common interest, in a single lawsuit

Question 170

Options in Pretrial Adjudication

Answer 170

1. Voluntary Dismissal
2. Default and Default Judgment
3. Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)).
4. Motion for Summary Judgment (FRCP 56).

Question 171

What is Voluntary dismissal and when can it be raised?

Answer 171

P wants to withdraw the case. P can make a motion for voluntary dismissal anytime.

P has a right to take a voluntary dismissal by filing a “notice of dismissal.” But she must do so before Defendant serves her answer or motion for Summary Judgment

Question 172

If P files a timely notice of dismissal, the case is dismissed “without prejudice.” What does that mean?

Answer 172

P can refile the case

But you only get to do it without prejudice once

Question 173

What if P files a notice of dismissal in the second case? That dismissal is “with prejudice.” What does that mean?

Answer 173

P cannot refile the case

Question 174

Involuntary dismissal

Answer 174

A court’s directive discharging a pending action due to the plaintiff’s failure to pursue the action or to comply with the rules or a court order, or as a result of granting a defendant’s motion under Rule 12
- Presumed to be with prejudice

Question 175

Timing for and implication for Default and Default Judgment

Answer 175

The type of judgment entered against a party that has failed to make an appearance or otherwise defend itself in the action
- D does not respond to the complaint in time (21 days
after being served with process; 60 days from mailing of waiver if you waived service).

Question 176

Default is…

Answer 176

a notation by the court clerk on the docket sheet of the case.

Question 177

Does the court enter default automatically on the 22nd day after service of process on D?

Answer 177

No - P must move for it

Question 178

What does P have to demonstrate for default and what may D do?

Answer 178

P must demonstrate that D failed to respond in time. Until default is entered, D can respond by motion or answer (even beyond 21 days).

Question 179

What is the effect of entry of default?

Answer 179

It cuts off Ds right to respond

Question 180

Does entry of default entitle the P to recover?

Answer 180

Entry of default does not entitle P to recover.

Question 181

What does P need to do before she can recover from D?

Answer 181

Get a default judgment

Question 182

How to get a default judgment.

Answer 182

• The clerk of court can enter judgment if:
  
  • D made no response at all;
  • The claim itself if for a sum certain in money;
  • Claimant gives an affidavit (sworn statement) of the sum owed; AND
  • D is not a minor or incompetent.
• If any of those is not true, You apply to the court itself - there you got to see the judge
  
  • The judge will hold a hearing and has discretion to enter judgment.

Question 183

Does D get notice of this hearing for default?

Answer 183

Only if he appeared in the case

Question 184

What is the max you can recover for a default judgement and what can’t you recover? What if the case goes to trial?

Answer 184

You are limited to what you plead

You also cannot get a different type of relief than what you pleaded

If the case goes to trial, P can recover more (and a different kind of relief) than she put in her complaint.

Question 185

D may move to have the court set aside a default or default judgment

What must the D show for a Motions to set aside?

Answer 185

1. by showing good cause (like excusable neglect) and
2. must state a viable defense

Question 186

Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)).

Answer 186

This is about whether the case belongs in the litigation stream at all.

If P’s complaint fails to state a claim, the case can be dismissed.

Question 187

In ruling on a Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)), what does and doesn’t the court look at? And what does the court ask?

Answer 187

In ruling on this motion, the court ignores P’s legal conclusions. It looks only at P’s allegations of fact in the complaint and asks: If these facts were true, would P win a judgment?

• If the answer is no, there is no sense letting the case proceed, because the law does not recognize a claim on these facts. Court might let P amend to try to state a claim, though.

It also does not look at evidence, just the face of the complaint

Question 188

The facts in a claim must be…

Answer 188

plausible

Question 189

Motion for Summary Judgment (FRCP 56)

Answer 189

Summary judgment weeds out cases in which we don’t need trial.

Why do we ever have a trial?

• To resolve disputes of material fact

Question 190

Party moving for summary judgment must show:

Answer 190

(1) There is no genuine dispute on a material fact and
(2) That she is entitled to judgment as a matter of law.

If the moving party shows these things,the court has discretion to grant SJ

Question 191

Timing for Summary Judgement

Answer 191

Any party can move for this no later than 30 days after Discovery

Question 192

Can the motion for summary judgment be for “partial” judgment – say, on one of several claims?

Answer 192

Yes

Question 193

In summary judgment, can the court look at evidence?

Answer 193

Yes - this is different from 12(b)(6)

The court views the evidence in the light most favorable to the nonmoving party.

Question 194

How can parties proffer evidence for summary judgment?

And why can these be considered evidence?

Answer 194

(1) affidavits or
(2) declarations or
(3) deposition testimony or
(4) interrogatory answers.

Because they are under oath

Question 195

Can a pleading ever be treated as evidence for summary judgement?

Answer 195

Only if it is verified

Usually, pleadings are not under oath and so are not considered evidence.

But pleadings might be relevant for summary judgment in this way: if D failed to deny an allegation by P, it can be treated as fact on summary judgment.

Question 196

What is a Rule 26(f) Conference and timing?

Answer 196

Unless court order says otherwise, at least 21 days before
scheduling conference, parties “meet and confer.”

They discuss production of required initial disclosures, claims, defenses, settlement, and issue about preservation of discoverable information.

Question 197

What else must parties present at Rule 26(f) Conference

Answer 197

A detailed discovery plan

Question 198

what must be in the detailed discovery plan for the Rule 26(f) Conference?

Answer 198

The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (e.g., deleted files), etc.

Question 199

Scheduling Order

Answer 199

Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc.
This is a roadmap for how the litigation proceeds up to trial

Question 200

Pretrial Conference

Answer 200

A meeting a court may hold before a trial to (1) expedite resolution of the case; (2) set a schedule to avoid protracted delay; (3) discourage wasteful pretrial activities; (4) improve trial preparation; and (5) facilitate settlement

Question 201

Final Pretrial Conference

Answer 201

The final pretrial conference will determine the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order

Question 202

What is the signifigance of a final pretrial conference order?

Answer 202

It supersedes the pleadings

Order that court must issue after pretrial conference to set forth (1) decisions concerning claims and defenses, (2) stipulations of facts, (3) evidentiary rulings, (4) timing for summary judgment motions, (5) discovery schedule, (6) identification of witnesses and documents, (7) timing for pretrial briefs, (8) decisions to refer matters to magistrate, (9) details of any settlements made, and (10) disposition of pending motions

Question 203

What is the point of a pretrial conference order?

Answer 203

So there are no surprises at trial

Question 204

Discovery

Answer 204

The process by which parties to litigation exchange facts, documents, or tangible things relevant to the claims and defenses at issue in the case

Question 205

What is relevant?

Answer 205

Relevant includes things that are “reasonably calculated to lead to the discovery of admissible evidence.”

It’s broader than admissible

Question 206

Discovery of harmful info

Answer 206

Remember, something harmful to you need not be disclosed in required disclosures, but may well be discoverable using the regular discovery tools.

Question 207

Proportionality of Discovery

Answer 207

Even if something is relevant, the court has authority to limit discovery if the request is cumulative or if the burden outweighs the importance of the issue

Question 208

Privilege

Answer 208

You can object to discovery on the basis of evidentiary privilege – like confidential communications between attorney and client.

Question 209

Work product

Answer 209

Work product or “trial preparation materials” (material prepared in anticipation of litigation). Generally protected from discovery.

Question 210

Does work product have to be generated by a lawyer?

Answer 210

No - it is by a party or any representative of a party

Question 211

Would it be work product if it were in electronic format?

Answer 211

Yes

Question 212

Qualified Work Product

Answer 212

Work product that is otherwise undiscoverable can be discovered if it is shown:

1. Substantial Need;
2. and its not otherwise available

Question 213

“absolute work product”

Answer 213

BUT there is also “absolute work product,” which cannot be discovered. Things absolutely protected from discovery are:

1. mental impressions,
2. opinions,
3. conclusions, and
4. legal theories.

Question 214

Asserting privilege or work product

Answer 214

If you withhold discovery or seek a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail.

Question 215

When you assert privilage or work product, what materials must you describe in detail? And what is this document called? What else must be included

Answer 215

List the materials protected by:

• date,
• author,
• recipient,
• and privilege or protection claimed.

It must be in enough detail to allow the judge to determine whether the material is protected.

This is called a A privilege log.

Question 216

There are three ways courts get involved in discovery disputes:

Answer 216

1. Protective order
2. Partial response to discovery request
3. No response to discovery request

Question 217

When can you move for a Protective Order

Answer 217

If the responding party thinks a discovery request subjects it to annoyance, embarrassment, undue burden, or expense (e.g., ESI is not reasonably accessible (e.g., deleted files) or the request is cumulative and not proportional to the case) she can move for a protective order

Question 218

Must must you do in order to compel a protective order?

Answer 218

She must certify that she tried in good faith to get the info without court involvement – that she asked the other side to “meet and confer.”

Question 219

In a protective order situation, what can the court do if it agrees that that she tried in good faith to get the info without court involvement?

Answer 219

If the court agrees, it can:

1. deny discovery or
2. limit it or
3. permit it on certain terms.

Question 220

What can the party/court do in the case of a Partial response to discovery request

Answer 220

Here, the responding party answers some questions but objects to others. Requesting party will make a motion to compel answers, and the court will decide whether the objections were legitimate.

Question 221

No response to discovery request.

Answer 221

Here, the responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production.

Question 222

Sanctions against a party.

Answer 222

(The party seeking sanctions must certify that she tried in
good faith to get the info without court involvement.)

Sanctions depends on 1 of 2 types of responses.

Question 223

What types of responses elicit sanctions?

Answer 223

1. Partial response
2. No Response

Question 224

Sanctions for Partial Response

Answer 224

Two options:

1. You move for an order compelling the party to answer the unanswered questions, plus costs (including attorney’s fees) of bringing motion.
2. IF the party violates the order compelling him to answer, RAMBO sanctions plus costs (and attorney’s fees re the motion) and could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam).

Question 225

Sanctions for no response

Answer 225

RAMBO plus costs (and attorney’s fees for the motion). No need to get an order compelling answers. Go directly to RAMBO.

Question 226

RAMBO SANCTIONS (choices available to judge):

Answer 226

1. Establishment order (establishes facts as true)
2. Strike pleadings of the disobedient party (as to issues re the discovery)
3. Disallow evidence from the disobedient party (as to issues re the discovery)
4. Dismiss plaintiff’s case (if bad faith shown)
5. Enter default judgment against defendant (if bad faith shown)

Question 227

If a party fails to produce ESI because it was lost in the good faith, routine operation of an electronic info system, are there sanctions?

Answer 227

Only in exceptional cases

Question 228

Assuming no court order or stipulation provides otherwise, when can a party first request discovery from other parties?

Answer 228

After the Rule 26f conference

Question 229

Discovery Tools

Answer 229

1. Depositions
2. Interrogatories
3. Requests to produce
4. Medical exam (physical or mental)
5. Request for admission

Question 230

Depositions

Answer 230

Here, a person gives live testimony in response to questions by counsel or pro se parties.

The questions are usually oral, but can be written (if written, they are read by the court reporter)).

Deponent testifies under oath.

The deposition is recorded by sound or video or stenographically and a transcript can be made.

Question 231

Is the deponent required to review all her relevant files and notes before being deposed?

Answer 231

No - you testify from present recollection

Question 232

Can you take the deposition of a party or of a nonparty?

Answer 232

Yes, but you should subpoena to compel attendance

Question 233

Rule to get a party to a deposition?

Answer 233

You don’t need to subpoena a party; just serve notice of deposition.

Question 234

A subpoena “duces tecum”

Answer 234

Requires the deponent to bring requested materials with her

Question 235

Unless a nonparty agrees, what is the farthest she can be required to travel to have her deposition taken?

Answer 235

100 miles from where she resides or is employed

Question 236

Limits on Depositions

Answer 236

• you cannot take more than 10 depositions
• you cannot depose the same person twice without court approval or stipulation.
• Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.

Question 237

Use of depositions at trial (all subject to rules of evidence):

Answer 237

1. Impeach the deponent;
2. any purpose if the deponent is an adverse party;
3. any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.

Question 238

Interrogetories

Answer 238

These are written questions, to be answered in writing under oath.

Question 239

To whom can you send interrogatories?

Answer 239

The parties only

Question 240

How long does the party have in which to respond with her answers or objections of an interrogetory?

Answer 240

30 days from service

Question 241

Can you respond by saying you don’t know the answer to an interrogetory?

Answer 241

You must answer from information reasonably available to you - so you must do some HW here

Question 242

What is the maximum number of interrogatories you can send to a party (unless there is a court order or stipulation for more)?

Answer 242

25

And that includes subparts, so no more than 25 actual questions.

Question 243

Rule for if answers to interrogatories can be found in business records and it would be burdensome to find the answers

Answer 243

If the answers to interrogatories can be found in business records and it would be burdensome to find the answers, the responding party can allow the requesting party to
have access to the records.

Question 244

Use of your own answers to interrogetories at trial

Answer 244

At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence.

Question 245

Requests to produce

Answer 245

These request that someone make available for review and copying documents or things, including ESI, or to permit you to enter designated property to inspect, measure, etc.

Question 246

When must someone respond to a request to produce?

Answer 246

The person must respond in writing within 30 days
of service, stating that the material will be produced or asserting objections.

Question 247

Can you make a request to produce of parties and of nonparties?

Answer 247

Yes, but you should subpoena the non-party

Question 248

In what form is ESI to be produced from a request to produce?

Answer 248

The requesting party specifies the form and the responding party can object

Question 249

How to obtain Medical exam (physical or mental)?

Answer 249

Obtain a court order

To get the court order, you must show: that the person’s health is in actual controversy and “good cause.”

Question 250

Who can be ordered to undergo a medical exam?

Answer 250

A party or someone in the party’s custody or legal control. This is narrow (e.g., parent is in control of child).

Question 251

How do you choose who conducts the medical exam?

Answer 251

The party seeking the order chooses the licensed person to perform the exam.

Question 252

Suppose the court orders a medical exam of Joe. The doctor examines Joe and writes her report and gives it to the party who requested the exam. Joe would like to see that report. Can Joe get a copy of it?

Answer 252

Yes, by requesting it from the party who sought the exam

Question 253

Consequence of Requesting to obtain medical report ordered by the other party

Answer 253

If Joe requests and obtains the report, he waives any privilege he might have concerning testimony about all examinations of that medical condition. So Joe would
have to produce reports of his own doctors concerning this medical condition.

Question 254

Request for admission.

Answer 254

This is a written request that someone admit things.

Requests for admission are often used to authenticate documents – “admit that this is the contract.”

Question 255

On who may a request for admission be served?

Answer 255

Parties only

Question 256

How can the defendent respond to a request for admission and how much time does he have?

Answer 256

If D fails to deny specifically (or to object to the request) in writing within 30 days, he is deemed to admit

Question 257

Can the responding party say she does not know the answer to a request for admission?

Answer 257

Only if he states he made a reasonable inquiry and cannot find enough info to admit or deny

Question 258

Parties sign substantive answers to discovery under oath. What must counsel do for every discovery request and response?

Answer 258

Every discovery request and response is:

• signed by counsel certifying:
  
  1. it is warranted,
  2. it is not interposed for improper purpose, and
  3. it is not unduly burdensome.

Question 259

After you respond to a discovery request, do you have any duties?

Answer 259

Duty to Supplement

If new circumstances render your responses incomplete or incorrect you must supplement your response, even if nobody asks

Question 260

Mandatory Disclosures

Answer 260

These materials must be produced even though no one asks for it.

1. Initial Disclosures
2. Expert Witnesses
3. Pretrial mandatory disclosure

Question 261

Timing for Mandatory Disclosures

Answer 261

Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference

Question 262

what must each party disclose in initial disclosures?

Answer 262

1. Identities of persons who have discoverable info that you (the disclosing party) may use to support your claims or defenses.
2. Documents and things that you may use to support your claims or defenses.
   
   • You may produce copies or a description of these things.
3. Computation of monetary relief and documents/ESI supporting it.
4. Insurance coverage. D must disclose any insurance that might cover all or part of the judgment in the case.

Question 263

For identity of persons for initial disclosures - what do you disclose?

Answer 263

1. Name
2. Telephone Number
3. subject on which they have info

Question 264

What happens if a party fails to identify someone she was required to identify?

Answer 264

The party cannot use that witness in the case (unless the failure to identify was substantially justified or harmless).

Question 265

Does the info to be disclosed under initial disclosures include photographs, recordings, and electronically stored info (ESI)?

Answer 265

Yes

Question 266

Does the info to be disclosed under initial disclosure include tangible things?

Answer 266

Yes

Question 267

What happens if a party fails to disclose something on ititial disclosure she was required to disclose?

Answer 267

You cannot use that material in the case (unless the failure to identify was substantially justified or harmless).

Question 268

What if you know about such documents, ESI, or things, but they are not in your custody or control. Do you have to disclose for initial disclosures them?

Answer 268

No - this is only about things in your control

Question 269

Computation of monetary relief and documents/ESI supporting it for initial disclosures

Answer 269

Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought.

Question 270

Required Disclosure of Expert witnesses (EW)

Answer 270

Later in the case, at a time directed by the court, each party must identify expert witnesses “who may be used at trial.”

Question 271

Suppose a party hired an expert to help it prepare the case, but does not intend to call that expert to testify at trial. Is this an expert witness?

Answer 271

No this is a consulting expert

Question 272

Do we need to disclose things from consulting experts?

Answer 272

Facts known and opinions held by consulting experts are generally not discoverable – only in “exceptional circumstances.”

Question 273

As to an expert witness (EW) “who may be used at trial,” what must each party generally disclose to the other parties?

Answer 273

The identity and a written report prepared by the EW

The written report must include:

1. opinions EW will express,
2. bases for the opinions,
3. facts used to form the opinions,
4. EW’s qualifications, and
5. how much EW is being paid.

Question 274

How to get a deposition of an expert witness

Answer 274

• That party should subpoena EW to compel her attendance.
• That party must pay the EW a reasonable fee per hour.

Question 275

Expert Witness & Attorney Work Product

Answer 275

Earlier drafts of the EW report are work product. So are communications between the lawyer and the EW.

Question 276

What is an Expert Witness?

Answer 276

An EW is someone who, because of special skill or training, may give opinion testimony. And she is hired to render an opinion in this case. There may be other
people with expertise who testify but who are not EW under this rule.

Question 277

What happens if a party fails to identify an EW and to provide the required information?

Answer 277

You cannot use the EW in your case unless failure was justified or harmless.

Question 278

Pretrial Mandatory Disclosure

Answer 278

No later than 30 days before trial, must give detailed
information about trial evidence, including identity of witnesses to testify live or by deposition and documents/ESI/things to be introduced at trial.

Question 279

You can sue as co-plaintiffs when cases:

Answer 279

1. Arise from the same transaction or occurrence (T/O)
2. Raise at least one common question

Question 280

The case has been filed. Now the court might force some nonparty (“absentee”) to join in the case.
– Why would a court force a nonparty into the case?

Answer 280

Because the absentee is necessary or required

Question 281

Who are Necessary and Indispensable Parties?

Answer 281

An absentee (A) who meets any of these tests:

1. Without A, the court cannot accord complete relief among existing parties (worried about multiple suits); OR
2. A’s interest may be harmed if he is not joined (practical harm); OR
3. A claims an interest that subjects a party (usually D) to a risk of multiple obligations.

Question 282

are joint tortfeasors necessary?

Answer 282

Never

Question 283

How can an absentee be joined?

Answer 283

First make sure he is necessary

NOW see if your joinder is “feasible.” It is feasible if:

1. there is PJ over you and
2. joining you will not goof up diversity jurisdiction (the court determines whether you would come in as a P or a D to see if bringing you in will goof up diversity).

If the joinder is feasible, The court orders the absentees joinder

Question 284

What happens if you (A) cannot be joined (e.g., no PJ over you)?

Answer 284

The court must do one of two things:

1. Proceed without the absentee or
2. dismiss the entire case

Question 285

When the absentee cannot be joined, and the court must make the decision whether to a) Proceed without the absentee or b) dismiss the entire case, How does the court make that decision?

Answer 285

It looks at these factors:

1. Is there an alternative forum available? (maybe some state court);
2. What is the actual likelihood of harm to you?
3. Can the court shape relief to avoid that harm to you?

Question 286

What happens if the court decides to dismiss rather than to proceed without the absentee?

Answer 286

Then we call the absentee indispensable

Question 287

What’s an impleader?

Answer 287

There, D is bringing in someone new. The new party
is the third-party defendant (TPD).

Question 288

If you have an impleader claim, must you assert it in this case?

Answer 288

No - its not compulsory

Question 289

What circumstances bring about impleader? When can we use it? Why do we?

Answer 289

• D can only do this only to shift the liability that he owes to P. In other words, if D is found liable to P, he will try to get 3rd Party D (TPD) to pay all or part of his own liability.
• So an impleader claim is usually for indemnity (TPD has to cover the full claim) or contribution (TPD has to cover a pro-rata portion of the claim).

Question 290

Steps for impleading the TPD in the pending case:

Answer 290

a. D files a third-party complaint naming the TPD; and
b. Serve process on the TPD. (So must have PJ over TPD.)

Question 291

Timing for Impleader

Answer 291

There is a right to implead within 14 days of serving your answer.

After that, you need court permission.

Question 292

After TPD is joined, may plaintiff assert a claim against TPD?

Answer 292

Yes, if the claim arises from the same T/O as the underlying case.

Question 293

After TPD is joined, may TPD assert a claim against plaintiff?

Answer 293

Yes if the claim arises from the same T/O as the underlying case.

Question 294

Subject Matter Jurisdiction & Impleader

Answer 294

Remember to assess each claim separately for subject
matter jurisdiction. Try diversity and federal question. If neither works, try supplemental jurisdiction.

There does not need to be diversity between the 3rd party D and the P, but there does between both of the Ds.

Question 295

What is Intervention?

Answer 295

Here, the nonparty brings herself into the case. She chooses to come in either as P (to assert a claim) or as D (to defend a claim).

The court may realign her if it thinks she came in on the “wrong” side.

Application to intervene must be “timely.”

Question 296

What are the types of Intervention?

Answer 296

1. Intervention of right
2. Permissive intervention

Question 297

Intervention of Right

Answer 297

Intervention of Right occurs when you would be a necessary. Same rules. Thus if you are necessary, you may intervene

Question 298

Permissive intervention

Answer 298

A’s claim or defense and the pending case have at
least one common question.

Discretionary with court.

Usually OK unless intervention will cause delay or prejudice to someone.

Question 299

Intervention and SMJ

Answer 299

Assess claim by/against the intervenor for subject
matter jurisdiction (diversity or FQ. If neither applies, then try supplemental).

Question 300

Class Action

Answer 300

Representative(s) (“Rep”) sues on behalf of group.

Question 301

Initial Requirements for Class Action and what about them

Answer 301

Must demonstrate all four of these:

1. Numerosity
   
   • Too many class members for practicable joinder - no magic #
2. Commonality
   
   • There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.
3. Typicality; and
   
   • Rep’s claims are typical of those of the class
4. Representative adequate
   
   • The class representative will fairly and adequately represent class.

Question 302

What are the next steps for class action ones the initial requirements are met?

Answer 302

Must fit the case within one of three types:

1. TYPE 1: “Prejudice”: class treatment necessary to avoid harm (prejudice) either to class members or to the non-class party.
2. TYPE 2: Class seeks an injunction or declaratory judgment because D treated the class alike.
   
   • example: Employment Discrimination
   • Cannot recover damages
3. TYPE 3: “Damages”: (Example: Mass Tort)
   
   1. common questions predominate over individual questions; AND
   2. class action is the superior method to handle the dispute.

Question 303

Whats a Prejudice type of class action all about?

Answer 303

Many people have claims to a limited fund of money. If they sue individually, the fund will be depleted before all claimants get to court. That would leave those later claimants with nothing. To avoid this harm, a class would allow everybody to recover at least a portion of her claim.

Question 304

Which type of class action requires notice?

Answer 304

Type 3 - Damages

Question 305

Rep’s complaint will say “class action.” But a case is not a class action until what?

Answer 305

Until the court grants a motion to certify it

Question 306

And when the court certifies the class action, it must:

Answer 306

1. “define the class and the class claims, issues, or defenses.”
2. And Appoint class council

Question 307

What is required of class counsel?

Answer 307

Class counsel must fairly and adequately represent the interests of the class

Question 308

In a Type 3 Damages Class Action - what else is required?

Answer 308

The court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonably identifiable members. The notice tells them various things, including:

(a) they can opt out;
(b) they’ll be bound if they don’t; and
(c) they can enter a separate appearance through counsel.

Question 309

Who pays to give this notice in Type 3 Damages Class Actions?

Answer 309

The representative

Question 310

Who is bound by the judgment in a certified class action?

Answer 310

It is all members except those who opt out of a Type 3 damages class action.

There is no right to opt out of a Type 1 or Type 2 class action.

Question 311

Can the parties settle or dismiss a certified class action?

Answer 311

Only with court approval

In all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed.

If it’s a Type 3 class, the court
might give members a second chance to opt out.

Question 312

How is Diversity for SMJ satisfied in class action?

Answer 312

For citizenship, consider only the rep (ignore other class members’ citizenships).

The reps claim must exceed $75,000

That means: As long as the rep is diverse from all defendants, and as long as the rep’s claim exceeds $75,000, the class action will invoke diversity.

Question 313

Class Action Fairness Act (CAFA)

Answer 313

This grants subject matter jurisdiction separate from diversity of citizenship jurisdiction.

It lets a federal court hear a class action (of at least 100 members) if any class member (not just the representative) is of diverse citizenship from any defendant and if the aggregated claims of the class exceed $5,000,000.

This makes it easier for interstate class actions to go to federal court.

• There are complicated provisions to ensure that local classes (where most class members and the primary defendants are citizens of the same state) do not stay in federal court; they get dismissed (or, if they were removed from state court, are remanded to state court).

Question 314

Jury Trial

Answer 314

If we have a jury, it determines the facts and returns the “verdict.”

If we don’t have a jury, the judge determines the facts (in a “bench trial”).

Question 315

what is a motion in limine?

Answer 315

A pretrial motion to decide whether the jury should hear certain evidence.

Question 316

Right to jury trial in federal court

Answer 316

Seventh Amendment preserves the right to jury in “civil actions at law,” but not in suits at equity.

Question 317

What if a case involves both law and equity? Suppose a case involves a claim for damages (legal relief) and for an
injunction (equitable relief).

Answer 317

The jury decides the facts underlying the damages claim, but not the equity claim

Question 318

In what order will the trial usually proceed?

Answer 318

Try jury issues first

Question 319

Does the Seventh Amendment apply in state court?

Answer 319

No

Question 320

How to obtain a jury & timing

Answer 320

Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issue. If you don’t, you waive the right to a jury.

Question 321

“Voir Dire”

Answer 321

In the jury selection process (“voir dire”), each side might ask the court to strike (remove) potential jurors.

Question 322

There are two kinds of challenges to jurors:

Is there a limit to each of these

Answer 322

1. “For cause” – e.g., potential juror will not be impartial.
   
   • No limit
2. “Peremptory” – historically, one did not need to state a reason – you just dismiss the potential juror.
   
   • 3 per side

Question 323

How may peremptory strikes be used and why?

Answer 323

Peremptory strikes may only be used in a race and gender-neutral manner.

Because jury selection is State action

Question 324

How many jurors are on a civil jury in federal court?

Answer 324

Minimum 6; Maximum 12

Question 325

Unless the parties agree otherwise, what jury vote is required for a verdict?

Answer 325

Unanimous

Question 326

Jury instructions

Answer 326

The jury decides facts, but is instructed on the law by the judge.

Parties submit proposed jury instructions to the judge. They do this at the close of all evidence (or earlier if the court says so).

Before final argument and instruction, the court informs the parties of what instructions it will give and of its rejection of any proposed jury instructions.

Question 327

Must the parties be allowed to make specific objections to the jury instructions and to the rejection of proposed instructions?

Answer 327

Yes - before final argument and instruction

If objections are not made before the jury is “charged” (given the instructions), the party cannot raise a problem with jury instructions on appeal.

Question 328

One exception: if a party did not object timely, a court can consider a jury instruction if it contained:

Answer 328

Plain Error that effects substantial rights

Question 329

Types of verdicts.

Answer 329

The judge determines what verdict form the jury will use.

1. General
2. Special
3. General verdict with special interrogatories

Question 330

General verdict

Answer 330

This jury says who wins and, if P wins, what the relief is. The clerk of court then enters the judgment on the general verdict.

Question 331

Special verdict

Answer 331

Here, the jury answers specific questions about the facts in dispute. The judge then reaches legal conclusions based on the facts found.

Question 332

General verdict with special interrogatories

Answer 332

Here, the jury gives a general verdict but must also answer specific question submitted to it. The questions ensure that the jury considered the important issues.

Question 333

If the jury returns a general verdict, who enters the judgment?

Answer 333

Clerk of the Court

Question 334

If the jury returns a special verdict or general verdict with special interrogatories and the answers are consistent with each other and with the verdict, what happens?

Answer 334

The judge approves the judgment, and the clerk enters it

Question 335

What happens if the verdict shows that the jury did not follow instructions or it is internally inconsistent (e.g., answers to questions are inconsistent with result)?

Answer 335

No judgment can be entered

The court can then instruct the jury to reconsider its answers or, if reconsideration won’t fix the problems, it can order a new trial.

Question 336

Juror misconduct

Answer 336

The court can set aside the verdict and order a new trial.

A verdict may be “impeached” based upon “external” matters. So if jurors were bribed, or based the verdict on their investigation of matters outside of court instead of the evidence at trial, a new trial can be ordered. Non-jurors may give first-hand evidence of such things.

BUT a juror cannot testify about things occurring or statements made during jury deliberations – except to show “extraneous prejudicial information” or “outside influence.”

Question 337

Can a new trial be ordered on the basis of a juror’s testimony that another juror was on drugs during deliberations or lied during jury selection to hide his bias?

Answer 337

No - these are intrinsic matters and juror’s testimony cannot be considered

And a verdict will not be set aside if the misconduct was harmless – juror chatted for a moment with P about the weather (not the case).

Question 338

When there is no jury (either Seventh Amendment did not apply or the parties waived the right to jury trial), who determines the facts at trial?

Answer 338

The judge

Question 339

What must the judge record in a bench trial?

Answer 339

1. findings of fact
2. conclusions of law separate from the findings of fact
3. The judgment

Question 340

Motion for judgment as a matter of law (JMOL).

Answer 340

For centuries, this was called “directed verdict.” It applies in jury trial. If the judge grants JMOL, the case will not
go to the jury – the judge simply rules for a side.

The motion is based upon evidence presented at trial.

Question 341

Why would a judge grant JMOL and refuse to let the jury decide the case?

Answer 341

Because reasonable could not disagree on the result

Question 342

How is evidence viewed for JMOL?

Answer 342

Like summary judgment, the court views the evidence in the light most favorable to the non-moving party.

Question 343

When can a party move for JMOL?

Answer 343

After the other side has been heard at trial

Question 344

Renewed motion for judgment as a matter of law (RJMOL).

Answer 344

THIS IS THE SAME AS JMOL BUT COMES UP AFTER TRIAL.

As with JMOL, the court views the evidence in the light most favorable to the non-moving party

Question 345

When is RJMOL Proper?

Answer 345

Must have moved for JMOL at trial. Then we use RJMOL because the jury reached a conclusion that reasonable people could not have reached

Question 346

If RJMOL is granted…

Answer 346

the court enters judgment for the party that lost the jury
verdict!

Question 347

When do you move for RJMOL?

Answer 347

Within 28 days after entry of judgment.

Question 348

What is an absolute prerequisite to bringing RJMOL?

Answer 348

You must have moved for JMOL at a proper time at trial; if you did not do that, you waived RJMOL

Question 349

Motion for a new trial

Answer 349

Judgment is entered, but some error at trial requires that we should start over and have a new trial. Can be based on any (non-harmless) error that makes the judge think
we should have a do-over.

Question 350

Timing for motion for a new trial

Answer 350

Party moves for this within 28 days after judgment.

Question 351

Examples of Errors in which a motion for new trial would be proper

Answer 351

1. Judge gave an erroneous jury instruction;
2. New evidence that could not have been gotten before with due diligence;
3. Misconduct by juror or party or lawyer, etc.
4. Judgment is against weight of the evidence (serious error of judgment);
5. Inadequate or excessive damages.

Question 352

What are your options if you waive RJMOL?

Answer 352

Motion for new trial

Question 353

Ordering new trial is less drastic than ordering RJMOL. Why?

Answer 353

It results in starting over, so so the same party might still win

Question 354

One ground for new trial is that the jury’s damages figure is excessive or inadequate. What is the standard for ordering new trial on this ground?

Answer 354

The damages figure shocks the conscience

Question 355

But new trial is a lot of work. To avoid a new trial, the court might suggest…

Answer 355

remittitur or additur

Question 356

Remittur

Answer 356

The court finds the damages figure is so high it shocks the conscience, it can order new trial or suggest remittitur.

This gives P a choice: take a lesser amount (which the court sets) or go through new trial.

The court cannot simply lower the amount.

Question 357

Is remittitur OK in state and federal court?

Answer 357

Yes - ok in both

Question 358

Additur

Answer 358

The court finds the damages figure shocks the conscience because they are too low.

It can order new trial or suggest additur. This gives D a choice: pay a greater amount in damages (which the court sets) or go through new trial.

Question 359

Is additur OK in state and federal court?

Answer 359

It is ok in State Court; it is UNCONSTITUTIONAL in Federal Court

Additur violates the Seventh Amendment. Because that applies only in federal court, state courts are free to recognize additur.

Question 360

Motion for Relief from Order or Judgment.

Answer 360

Here, we ask the district court to set aside an order or judgment it entered

Question 361

Types of Motions for Relief from Order or Judgment and their respective timings

Answer 361

1. Clerical error
   
   • Anytime
2. Mistake, excusable neglect
   
   • Reasonable time (never more than 1 year)
3. New evidence that could not have been discovered with due diligence for a new trial motion
   
   • Reasonable time (never more than 1 year)
4. Judgment is void (e.g., no SMJ)
   
   • Reasonable time (no maximum)

Question 362

Final Judgment Rule

Answer 362

As a general rule, you can appeal only from final judgments. That means an ultimate decision by the trial court of the merits of the entire case.

Question 363

Timing for Filing an Appeal and where

Answer 363

File notice of appeal in trial court within 30 days after entry of final judgment

Question 364

To determine if a ruling is a final judgment, ask one question – after making this ruling:

Answer 364

does the trial court have anything left to do on the merits of the case?

If the answer is yes, it is not a final judgment.

Question 365

Is Denial of a motion for summary judgment final?

Answer 365

No. After denying summary judgment, the trial court still has the entire case before it.

Question 366

Is Grant of a motion for new trial final?

Answer 366

Not Final - TC must hold the new trial

Question 367

Is Denial of a motion for new trial final?

Answer 367

Final - you must appeal within 30 days of the denial

Question 368

Is a Grant of a motion to transfer the case to another district final?

Answer 368

Not Final

Question 369

Is Grant of a motion to remand to state court final?

Answer 369

Generally Not Final

Question 370

Interlocutory (Non-Final) Review.

Answer 370

May be appealable even though not final judgments.

Interlocutory orders reviewable as of right: orders granting, modifying, refusing preliminary or permanent injunctions.

Question 371

Interlocutory Appeals Act. Allows appeal of nonfinal order if…

Answer 371

(a) trial judge certifies that it involves a controlling issue of law
(b) as to which there is substantial ground for difference of opinion and the
(c) court of appeals agrees to hear it.

Question 372

“Collateral order” exception

Answer 372

Appellate court has discretion to hear ruling on an issue
if it:

(a) is distinct from the merits of the case,
(b) involves an important legal question, and
(c) is essentially unreviewable if parties must await a final judgment.

Question 373

P sues D. D files a counterclaim against P. The court enters summary judgment in favor of D on the first claim. This is not appealable as a final judgment because the counterclaim is still pending. Could the trial court expressly direct entry of a final judgment on the first claim and allow appeal of that issue now?

Answer 373

Yes - if it also expressly finds there is no just reason for delay

Question 374

Class action

Answer 374

Court of appeals has discretion to review an order granting or denying certification of class action. Must seek review at the court of appeals within 14 days of
order. Appeal here does not stay the proceedings at trial court unless the court of appeals or district court says so

Question 375

Extraordinary writ (mandamus or prohibition)

Answer 375

An original proceeding in appellate court to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only if the lower court is violating a clear legal duty.

Question 376

When the district judge decides questions of law, by what standard does the court of appeals review?

Answer 376

De Novo - no deference to the district judge

Question 377

Judge gives a jury instruction that put the burden of proof at trial on the wrong side.
Why does the court of appeals review that de novo?

Answer 377

The content of a jury instruction is a question of law

Question 378

In a non-jury trial, when the district judge determines questions of fact, the court of appeals will affirm unless:

Answer 378

the findings are clearly erroneous

And due regard must be given to the trial judge’s opportunity to assess credibility of witnesses at trial.

Question 379

In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless:

Answer 379

reasonable people could not have made that finding

Question 380

On discretionary matters (e.g., whether to grant a motion to amend pleadings, to allow permissive intervention, case management orders), the court of appeals will affirm
unless:

Answer 380

the district court abused its discretion

Question 381

We saw above that the content of jury instructions is reviewed de novo. But what about review of the trial judge’s decision whether to give a particular instruction?

Answer 381

That is reviewed for abuse of discretion

Question 382

Not every error (even an error of law) requires reversal on appeal. No reversal is required if the error is:

Answer 382

Harmless

Question 383

Basic Idea of Claim Preclusion

Answer 383

Whenever there has been an earlier case, watch for these claims, which concern the preclusive effect of a prior judgment on the merits. The question is whether a judgment already entered (Case 1) precludes litigation of any claims in another case (Case 2).

Question 384

If Case 1 and Case 2 are in different judicial systems (e.g., state and federal), the court in Case 2…

Answer 384

applies the preclusion law of the judicial system that decided Case 1.

Question 385

Claim Preclusion (Res Judicata)

Answer 385

You only get to sue on a claim once. So you only get one case in which to vindicate all rights to relief for that claim

Question 386

Requirements for Claim Preclusion (Res Judicata).:

Answer 386

1. Case 1 and Case 2 were brought by the same claimant against the same defendant.
2. Case 1 ended in a valid final judgment on the merits.
3. Case 1 and Case 2 asserted the same “claim.”

Question 387

Case 1 and Case 2 asserted the same “claim.” requirement for preclusion - the 2 views:

Answer 387

Majority view (including federal law): a claim is any right to relief arising from a transaction or occurrence.

Minority (CA) View: There are separate claims for property damage and for personal injuries because those are different “primary rights.”

Question 388

Issue Preclusion (Collateral Estoppel)

Answer 388

This is narrower. An issue was litigated in Case 1. The same issue comes up in Case 2. But if issue preclusion applies, we will not allow the issue to be relitigated in Case 2. We deem it established in Case 2.

Question 389

Requirements for Issue Preclusion (Collateral Estoppel)

Answer 389

1. Case 1 ended in a valid, final judgment on the merits.
2. The same issue was actually litigated and determined in Case 1
3. The issue was essential to the judgment in Case 1. That means the finding on this issue is the basis for the judgment.

Question 390

Against whom can issue preclusion be asserted?

Answer 390

It can only be used against somebody who was a party to Case 1 (or represented by a party in Case 1, like a class action), or in privity with a party in Case 1.

Question 391

By whom can issue preclusion be asserted?

Answer 391

Every court agrees that issue preclusion can be used by someone who was a party to Case 1 (or represented by a party). The big question is whether it can be used by someone who was not a party to Case 1 (or represented by a party).

Question 392

When someone who was not a party to Case 1 tries to use issue preclusion in Case 2, it is called:

Answer 392

“Nonmutual” issue preclusion

Question 393

“Nonmutual” issue preclusion comes up in 2 ways

Answer 393

1. Defensive nonmutual issue preclusion
2. Offensive nonmutual issue preclusion

Question 394

Defensive nonmutual issue preclusion

Answer 394

the one using it was not a party to Case 1 and is D in Case 2

Its ok if:

1. the same issue litigated and determined in Case 1
2. that issue essential to the judgment in Case 1
3. issue preclusion being asserted against one who was party to Case 1

Its ok as long as there was a full chance to litigate in case 1

Question 395

Offensive nonmutual issue preclusion

Answer 395

the one using it was not a party to Case 1 and is P in Case 2

Same general reqs as nonmutual defensive preclusion

The only tough part is the fifth, because issue preclusion is asserted nonmutually. And here, the person asserting it is a plaintiff. Under the
mutuality rule, could not be done. Most courts today probably say no. BUT A CLEAR TREND IN THE LAW WILL ALLOW IT IF IT IS NOT “UNFAIR.” Factors (just throw them in):