FEDERAL CIVIL PROCEDURE Flashcards
Basic Idea for SMJ and Question to ask for it:
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)?
State’s Jurisdiction to hear a case
State courts can hear any kind of case (minor exception below). They have “general” SMJ.
What are cases that State Law cannot hear?
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.
What are the two main types of cases that can be heard in federal court?
- Diversity of Citizenship; or
- Federal Question
Diversity of Citizenship Cases
- 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
- The amount in controversy exceeds $75,000.
Who are the right kinds of litigants for a diversity or alienage case?
Complete Diversity Rule
Complete diversity rule. No good if any P is a citizen of the same state as any D
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?
Alien
- – So litigation with her might invoke alienage, but not diversity.
P (a U.S. citizen domiciled in Japan) sues D (CA) in federal court. OK?
- Is there alienage?
- Is there diversity of citizenship?
No alienage - because P is not an alien
No diversity, because P is not a citizen of a U.S.
state
How do you establish a new domicile? It takes two things:
- Physical Presence there AND
- The intent to make that your permanent home
Relevant Factors for Intent to make a place your home
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.
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?
Ohio - because she has not been present in GA
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
No – diversity is OK.
There are two rules from this hypo:
- We treat DC as a State
- Test for diversity when the case is filed
When do we determine domicile and when don’t we?
So we do not care what happens to citizenships after the case is filed or what the citizenships were before the case was filed.
Citizenship of a corporation. What is/are the citizenship(s) of a corporation?
1) The State or Country where incorporated AND
2) The State or Country of its one PPB (“Nerve Center”)
Citizenship of an unincorporated association (like partnership or limited liability company (LLC)). What is its citizenship?
The citizenship of all its members
XYZ Partnership has partners who are citizens of 18 states. What is XYZ Partnership’s citizenship?
All 18 States
Do we care where XYZ Partnership was formed or has its PPB?
No
If it’s a limited partnership, do you include the citizenships of the general and the limited partners?
Yes, you include ALL partners
Citizenship of decedents, minors, or incompetents
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.
Amount in controversy.
In addition to complete diversity or alienage, P’s claim must exceed $75,000.
Is there any limit on the number of claims that can be aggregated?
No
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:
- – Plaintiff’s viewpoint: does the blocked view decrease the value of plaintiff’s property by more than $75,000?
- – Defendant’s viewpoint: would it cost defendant more than $75,000 to comply with the injunction?
Exclusions
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
Federal Question Cases.
The claim in P’s complaint “arises under” federal law (e.g.,
federal constitution, legislation).
“Well pleaded complaint” rule.
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)
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?
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
Federal Common Law
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.
Supplemental jurisdiction
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
Supplemental jurisdiction (Federal Question)
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)
Supplemental jurisdiction (Diversity cases)
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
Removal jurisdiction
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
Forum-Defendant Rule
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
Unanimity (Removal)
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.
PJ is about the court’s power over…
the parties
Court’s power over the plaintiff
Because P filed the case, the court automatically has power over P.
PJ involves one question:
can P sue D in this state?
Whether there is PJ is a two-step analysis:
- Satisfy a state long-arm statute AND
- Satisfy the Constitution (Due Process).
In Personam Jurisdiction
P sues to impose a personal obligation on D.
Statutory Analysis of in Personam Jurisdiction
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.
Constitutional analysis for in Personam Jurisdiction
Does D have “such minimum contacts with the forum” so jurisdiction does not offend traditional notions of fair play and substantial justice”?
PJ is clearly
constitutional if D is:
(1) domiciled in the forum or
(2) consents or
(3) is voluntarily present in the forum when served with process.
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:
RELATEDNESS - CONTACT – FAIRNESS
Contact
There must be a relevant contact between D and the forum state.
Two Factors for Contact
- The contact must result from purposeful availment
- Foreseeability
Purposeful Availment
- Ds voluntary act
- Defendant must reach out to the forum (cannot be an accident)
Foreseeability
It must be foreseeable that defendant could get sued in this forum
Relatedness between this contact and P’s claim. Ask this:
Does the Ps claim arise from the Ds contact with the forum?
Specific jurisdiction
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
General jurisdiction
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
Fairness gets asserted when?
In specific PJ cases only
How to determine fairness
- 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
- This is a very difficult burden
- the forum is constitutionally OK unless D can show that it puts him at a severe disadvantage in the litigation.
- State’s interest
- The forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters.
- Plaintiff’s interest
- Maybe injured and wants to sue at home.
In Rem and Quasi in Rem Jurisdiction
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
Basic Idea of Venue
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.
P may lay venue in any district where:
- any defendant resides; or
- 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
Do these venue choices apply in a removed case?
NO – remember, in a removed case, venue was set in the district that embraced the state court.
Where Do Defendants “Reside” for Venue Purposes?
Individuals: Where Domociled
Corporations: Anywhere PJ will apply
- PPB
- Incorporated
Transfer of Venue
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.
- the court can transfer to any district (even an improper venue) if all parties
2 different approaches to analyze transfer of venue
- If the original district filed in was the proper venue
- If the original district filed in was an improper venue
If the original district is a proper venue, that court can order transfer based on…
convenience of parties and witnesses and on the interest of justice.
Is there ever a right to transfer?
No, always discretionary
What factors does the court look to in deciding whether to transfer the case? and who bears the burden?
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
Public Factors for Transfer of Venue
- what law applies,
- what community should be burdened with jury service,
- the desire to keep a local controversy in the local court.
Private Factors for Transfer of Venue
convenience
Also where the evidence and witness’ are
Forum Selection Clause
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.
If the original district is an improper venue, what may that court do?
It may transfer in the interest of justice OR dismiss
Forum Non Conveniens
Like transfer, there is another court that is the center of gravity, that makes more sense than the present court.
What does the Court do in Forum Non Conveniens
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.
Reason behind Forum Non Conviens
Because the more convenient court is in a different judicial system (e.g., a foreign country), so transfer is impossible!
How to go about Forum Non Conveins
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.”
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?
No - its adequate just so P will get her day in court
Basic Idea of notice
D is entitled to notice that she has been sued.
What does notice consist of
Usually, this consists of:
- a summons (formal court notice of suit and time for response) and
- a copy of the complaint.
These two together is called process.
Who Can Serve Process?
Any nonparty who is at least 18 years old.
Does the process server have to be appointed by a court?
No
Ways of Service
- Personal service
- Substituted service
- Service on D’s agent
Personal service
Method of service by which a defendant must be served with original process (papers given to D personally), unless waived by the defendant
Where can D be personally served?
Anywhere
Substituted service.
Process is left with D’s butler at D’s summer home.
When is substituted service permissible?
1) Ds usual abode AND
2) we serve someone of suitable age and discretion
3) who resides there
Must D reside there every day of the year for it to qualify as his “usual abode”?
No - common sense approach
Must the person on whom service is made be related to D?
No
Service on Ds Agent
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.
In federal court, can P use substituted or agent service even if personal service would be possible?
Yes
Rules for Service under State Law
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
Waiver by mail
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.
If D waives formal service of process, does she waive any defense like lack of PJ?
No
How does the waiver become effective?
When D signs and mails the waiver form back to P, She files the waiver in court and it is effective then
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?
Yes - he must pay the cost of service
“Return” of Service.
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
Service of Other Documents
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).
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?
Yes - 3 additional days
Can you serve other documents by email?
Yes - if the party agrees
Erie doctrine
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
Substantive issue
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
Procedural issue
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
Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek:
a TRO
Ex Parte
Whenever a court does something without giving notice to the other party
Can the court issue a TRO ex parte?
Yes, in very limited circumstances
Ex parte TRO is proper only if:
- 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
- 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).
If the court issues the TRO, applicant must:
Post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.
The TRO must state:
The TRO must state:
- its terms in specificity,
- describe in detail what D must do or refrain from doing,
- and state why it was issued,
- and why the threatened injury to P was irreparable.
When must the TRO be served on the D
ASAP
If the court issues the TRO, what can D do?
Move to dissolve or modify the TRO
How long is a TRO effective for?
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.
Is a ruling on a motion for a TRO appealable?
No
What does a preliminary injunction do?
Maintains status quo until the court can adjudicate the underlying claim on the merits
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:
To take a certain action or prohibit a party from doing something likely to cause irreparable harm to another party
Can a preliminary injunction be granted ex parte?
Never
What must be shown for a preliminary injunction?
The burden is on the Applicant to show:
- He is likely to suffer irreparable harm if the injunction is not issued;
- He is likely to win on the merits of the underlying case;
- The balance of hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
- The injunction is in the public interest.
Is there ever a right to an injunction?
No - it is always discretionary
What must the applicant do if the court grants a preliminary injunction?
Applicant must post a bond.
What may the court do with case in regards to the preliminary injunction?
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.
The preliminary injunction must state:
The preliminary injunction must state:
- its terms in specificity,
- describe in detail what D must do or refrain from doing,
- and state why it was issued.
In granting or denying the preliminary injunction, the court must:
make specific findings of fact and separate conclusions of law
Is an order granting or denying a preliminary injunction appealable?
Yes
Complaint
Filing this commences an action.
Requirements:
- Statement of grounds of subject matter jurisdiction;
- Short and plain statement of the claim, showing entitled to relief;
- Demand for relief sought (e.g., damages, injunction, declaratory judgment)
What is the Standard for the Statement of claming stating relief?
Must plead facts supporting a plausible claim, not just a possible claim
How can D challenge a complaint?
D can challenge the complaint by making a Rule 12(b)(6) motion
What three matters must be pleaded with even more detail – with particularity or specificity?
- Fraud,
- Mistake and
- Special Damages
Defendant’s Response.
Rule 12 requires D to respond in one of two ways:
(1) by motion or
(2) by answer.
When must D respond to complaint by filing a motion or by answer?
Within 21 days after service of process
Consequence to D for failing to respond to complaint by filing a motion or by answer?
Default
Consequence of waiving service of process to Ds reponse?
If you waived service, you get 60 days from when P mailed you the waiver form.
What are motions?
Motions are not pleadings; they are requests for a court order.
Issues of Form Motions
(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.
Rule 12(b) defenses
(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.
Where can 12b6 Defenses be placed?
These defenses can be put either in a motion to dismiss or in the answer.
Which 12b6 Defenses are waivable?
(2) lack of PJ;
(3) improper venue;
(4) improper process (problem with the papers);
(5) improper service of process;
Where must waivable defenses be placed?
“WAIVABLE” DEFENSES MUST BE PUT IN THE FIRST RULE 12 RESPONSE (MOTION OR ANSWER) OR ELSE THEY’RE WAIVED.
What is the Answer?
It is a pleading
D does two things in the answer:
- Respond to allegations of complaint:
- Raise affirmative defenses
In his Answer, how must D respond to the allegations in the complaint?
(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.
What is D never deemed to admit?
Damages
In his Answer, D must raise affirimative defenses:
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.
What is a counterclaim?
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.
After D serves a counterclaim against P, what does P have to do?
P must respond under Rule 12 within 21 days
There are two types of counterclaim:
- Compulsory:
- Permissive:
Compulsory Counterclaim
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
Permissive Counterclaim
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
SMJ & Counterclaims
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.
Cross-claim
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
Can you use supplmental jurisidiction for a cross-claim?
You may use SMJ, but No Supplemental jurisidiction because the claim is not asserted by the P
Additional Claims
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
Amended Pleadings – four fact patterns.
- Right to amend.
- If there’s no right to amend
- Variance
- Amendment after the statute of limitations has run (“relation back”).
Right to amend.
Plaintiff has a right to amend once within 21 days after D serves her first rule 12 response
If there’s no right to amend…
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
Variance.
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.
Two types permissible of Amendments after the statute of limitations has run (“relation back”).
- To join a new claim
- To change a defendant after the statute has run
Amendment To join a new claim after the statute of limitations has run (“relation back”): Discuss Relation back
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.
Amendment To change a defendant after the statute has run after the statute of limitations has run (“relation back”):
This will relate back if:
- It concerns the same conduct, transaction, or occurrence as the original;
- The new party knew of this case within 120 days of its filing; and
- 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.
Supplemental Pleadings
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.)
Is there a right to Supplemental Pleadings?
No, its always discretionary
But the court will often do so unless it will cause delay or prejudice.
Certification: Rule 11
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:
- The paper is not for an improper purpose, and
- The legal contentions are warranted by law (or nonfrivolous argument for law change), and
- 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).
If there is a violation (e.g., assertion of a baseless claim), against whom may Rule 11 sanctions be ordered?
The party, the attorney or the firm
What must the court do before imposing Rule 11 Sanctions? And what does it usually do?
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.
What is the purpose of Rule 11 sanctions?
To deter, not to punish
Monetary Santions under Rule 11
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.
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
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.
Can the court raise Rule 11 problems on its own (“sua sponte”)?
Yes
Permissive joinder (Parties)
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
Compulsory Joinder (Parties)
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
Necessary party
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
Indispensable party
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
Interpleader
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
Rule interpleader
The type of interpleader in which the usual subject-matter jurisdiction and venue rules apply
Statutory interpleader
The type of interpleader in which the usual subject-matter jurisdiction and venue rules are relaxed
Intervention
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
Impleader
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
Class Action
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
Options in Pretrial Adjudication
- Voluntary Dismissal
- Default and Default Judgment
- Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)).
- Motion for Summary Judgment (FRCP 56).
What is Voluntary dismissal and when can it be raised?
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
If P files a timely notice of dismissal, the case is dismissed “without prejudice.” What does that mean?
P can refile the case
But you only get to do it without prejudice once
What if P files a notice of dismissal in the second case? That dismissal is “with prejudice.” What does that mean?
P cannot refile the case
Involuntary dismissal
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
Timing for and implication for Default and Default Judgment
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).
Default is…
a notation by the court clerk on the docket sheet of the case.
Does the court enter default automatically on the 22nd day after service of process on D?
No - P must move for it
What does P have to demonstrate for default and what may D do?
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).
What is the effect of entry of default?
It cuts off Ds right to respond
Does entry of default entitle the P to recover?
Entry of default does not entitle P to recover.
What does P need to do before she can recover from D?
Get a default judgment
How to get a default judgment.
- 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.
Does D get notice of this hearing for default?
Only if he appeared in the case
What is the max you can recover for a default judgement and what can’t you recover? What if the case goes to trial?
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.
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?
- by showing good cause (like excusable neglect) and
- must state a viable defense
Motion to Dismiss for Failure to State a Claim (FRCP 12(b)(6)).
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.
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?
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
The facts in a claim must be…
plausible
Motion for Summary Judgment (FRCP 56)
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
Party moving for summary judgment must show:
(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
Timing for Summary Judgement
Any party can move for this no later than 30 days after Discovery
Can the motion for summary judgment be for “partial” judgment – say, on one of several claims?
Yes
In summary judgment, can the court look at evidence?
Yes - this is different from 12(b)(6)
The court views the evidence in the light most favorable to the nonmoving party.
How can parties proffer evidence for summary judgment?
And why can these be considered evidence?
(1) affidavits or
(2) declarations or
(3) deposition testimony or
(4) interrogatory answers.
Because they are under oath
Can a pleading ever be treated as evidence for summary judgement?
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.
What is a Rule 26(f) Conference and timing?
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.
What else must parties present at Rule 26(f) Conference
A detailed discovery plan
what must be in the detailed discovery plan for the Rule 26(f) Conference?
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.
Scheduling Order
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
Pretrial Conference
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
Final Pretrial Conference
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
What is the signifigance of a final pretrial conference order?
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
What is the point of a pretrial conference order?
So there are no surprises at trial
Discovery
The process by which parties to litigation exchange facts, documents, or tangible things relevant to the claims and defenses at issue in the case
What is relevant?
Relevant includes things that are “reasonably calculated to lead to the discovery of admissible evidence.”
It’s broader than admissible
Discovery of harmful info
Remember, something harmful to you need not be disclosed in required disclosures, but may well be discoverable using the regular discovery tools.
Proportionality of Discovery
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
Privilege
You can object to discovery on the basis of evidentiary privilege – like confidential communications between attorney and client.
Work product
Work product or “trial preparation materials” (material prepared in anticipation of litigation). Generally protected from discovery.
Does work product have to be generated by a lawyer?
No - it is by a party or any representative of a party
Would it be work product if it were in electronic format?
Yes
Qualified Work Product
Work product that is otherwise undiscoverable can be discovered if it is shown:
- Substantial Need;
- and its not otherwise available
“absolute work product”
BUT there is also “absolute work product,” which cannot be discovered. Things absolutely protected from discovery are:
- mental impressions,
- opinions,
- conclusions, and
- legal theories.
Asserting privilege or work product
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.
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
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.
There are three ways courts get involved in discovery disputes:
- Protective order
- Partial response to discovery request
- No response to discovery request
When can you move for a Protective Order
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
Must must you do in order to compel a protective order?
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.”
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?
If the court agrees, it can:
- deny discovery or
- limit it or
- permit it on certain terms.
What can the party/court do in the case of a Partial response to discovery request
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.
No response to discovery request.
Here, the responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production.
Sanctions against a party.
(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.
What types of responses elicit sanctions?
- Partial response
- No Response
Sanctions for Partial Response
Two options:
- You move for an order compelling the party to answer the unanswered questions, plus costs (including attorney’s fees) of bringing motion.
- 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).
Sanctions for no response
RAMBO plus costs (and attorney’s fees for the motion). No need to get an order compelling answers. Go directly to RAMBO.
RAMBO SANCTIONS (choices available to judge):
- Establishment order (establishes facts as true)
- Strike pleadings of the disobedient party (as to issues re the discovery)
- Disallow evidence from the disobedient party (as to issues re the discovery)
- Dismiss plaintiff’s case (if bad faith shown)
- Enter default judgment against defendant (if bad faith shown)
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?
Only in exceptional cases
Assuming no court order or stipulation provides otherwise, when can a party first request discovery from other parties?
After the Rule 26f conference
Discovery Tools
- Depositions
- Interrogatories
- Requests to produce
- Medical exam (physical or mental)
- Request for admission
Depositions
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.
Is the deponent required to review all her relevant files and notes before being deposed?
No - you testify from present recollection
Can you take the deposition of a party or of a nonparty?
Yes, but you should subpoena to compel attendance
Rule to get a party to a deposition?
You don’t need to subpoena a party; just serve notice of deposition.
A subpoena “duces tecum”
Requires the deponent to bring requested materials with her
Unless a nonparty agrees, what is the farthest she can be required to travel to have her deposition taken?
100 miles from where she resides or is employed
Limits on Depositions
- 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.
Use of depositions at trial (all subject to rules of evidence):
- Impeach the deponent;
- any purpose if the deponent is an adverse party;
- 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.
Interrogetories
These are written questions, to be answered in writing under oath.
To whom can you send interrogatories?
The parties only
How long does the party have in which to respond with her answers or objections of an interrogetory?
30 days from service
Can you respond by saying you don’t know the answer to an interrogetory?
You must answer from information reasonably available to you - so you must do some HW here
What is the maximum number of interrogatories you can send to a party (unless there is a court order or stipulation for more)?
25
And that includes subparts, so no more than 25 actual questions.
Rule for if answers to interrogatories can be found in business records and it would be burdensome to find the answers
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.
Use of your own answers to interrogetories at trial
At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence.
Requests to produce
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.
When must someone respond to a request to produce?
The person must respond in writing within 30 days
of service, stating that the material will be produced or asserting objections.
Can you make a request to produce of parties and of nonparties?
Yes, but you should subpoena the non-party
In what form is ESI to be produced from a request to produce?
The requesting party specifies the form and the responding party can object
How to obtain Medical exam (physical or mental)?
Obtain a court order
To get the court order, you must show: that the person’s health is in actual controversy and “good cause.”
Who can be ordered to undergo a medical exam?
A party or someone in the party’s custody or legal control. This is narrow (e.g., parent is in control of child).
How do you choose who conducts the medical exam?
The party seeking the order chooses the licensed person to perform the exam.
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?
Yes, by requesting it from the party who sought the exam
Consequence of Requesting to obtain medical report ordered by the other party
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.
Request for admission.
This is a written request that someone admit things.
Requests for admission are often used to authenticate documents – “admit that this is the contract.”
On who may a request for admission be served?
Parties only
How can the defendent respond to a request for admission and how much time does he have?
If D fails to deny specifically (or to object to the request) in writing within 30 days, he is deemed to admit
Can the responding party say she does not know the answer to a request for admission?
Only if he states he made a reasonable inquiry and cannot find enough info to admit or deny
Parties sign substantive answers to discovery under oath. What must counsel do for every discovery request and response?
Every discovery request and response is:
- signed by counsel certifying:
- it is warranted,
- it is not interposed for improper purpose, and
- it is not unduly burdensome.
After you respond to a discovery request, do you have any duties?
Duty to Supplement
If new circumstances render your responses incomplete or incorrect you must supplement your response, even if nobody asks
Mandatory Disclosures
These materials must be produced even though no one asks for it.
- Initial Disclosures
- Expert Witnesses
- Pretrial mandatory disclosure
Timing for Mandatory Disclosures
Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference
what must each party disclose in initial disclosures?
- Identities of persons who have discoverable info that you (the disclosing party) may use to support your claims or defenses.
- Documents and things that you may use to support your claims or defenses.
- You may produce copies or a description of these things.
- Computation of monetary relief and documents/ESI supporting it.
- Insurance coverage. D must disclose any insurance that might cover all or part of the judgment in the case.
For identity of persons for initial disclosures - what do you disclose?
- Name
- Telephone Number
- subject on which they have info
What happens if a party fails to identify someone she was required to identify?
The party cannot use that witness in the case (unless the failure to identify was substantially justified or harmless).
Does the info to be disclosed under initial disclosures include photographs, recordings, and electronically stored info (ESI)?
Yes
Does the info to be disclosed under initial disclosure include tangible things?
Yes
What happens if a party fails to disclose something on ititial disclosure she was required to disclose?
You cannot use that material in the case (unless the failure to identify was substantially justified or harmless).
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?
No - this is only about things in your control
Computation of monetary relief and documents/ESI supporting it for initial disclosures
Anyone claiming monetary relief must provide a “computation,” supported by documents or ESI of the amount sought.
Required Disclosure of Expert witnesses (EW)
Later in the case, at a time directed by the court, each party must identify expert witnesses “who may be used at trial.”
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?
No this is a consulting expert
Do we need to disclose things from consulting experts?
Facts known and opinions held by consulting experts are generally not discoverable – only in “exceptional circumstances.”
As to an expert witness (EW) “who may be used at trial,” what must each party generally disclose to the other parties?
The identity and a written report prepared by the EW
The written report must include:
- opinions EW will express,
- bases for the opinions,
- facts used to form the opinions,
- EW’s qualifications, and
- how much EW is being paid.
How to get a deposition of an expert witness
- That party should subpoena EW to compel her attendance.
- That party must pay the EW a reasonable fee per hour.
Expert Witness & Attorney Work Product
Earlier drafts of the EW report are work product. So are communications between the lawyer and the EW.
What is an Expert Witness?
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.
What happens if a party fails to identify an EW and to provide the required information?
You cannot use the EW in your case unless failure was justified or harmless.
Pretrial Mandatory Disclosure
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.
You can sue as co-plaintiffs when cases:
- Arise from the same transaction or occurrence (T/O)
- Raise at least one common question
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?
Because the absentee is necessary or required
Who are Necessary and Indispensable Parties?
An absentee (A) who meets any of these tests:
- Without A, the court cannot accord complete relief among existing parties (worried about multiple suits); OR
- A’s interest may be harmed if he is not joined (practical harm); OR
- A claims an interest that subjects a party (usually D) to a risk of multiple obligations.
are joint tortfeasors necessary?
Never
How can an absentee be joined?
First make sure he is necessary
NOW see if your joinder is “feasible.” It is feasible if:
- there is PJ over you and
- 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
What happens if you (A) cannot be joined (e.g., no PJ over you)?
The court must do one of two things:
- Proceed without the absentee or
- dismiss the entire case
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?
It looks at these factors:
- Is there an alternative forum available? (maybe some state court);
- What is the actual likelihood of harm to you?
- Can the court shape relief to avoid that harm to you?
What happens if the court decides to dismiss rather than to proceed without the absentee?
Then we call the absentee indispensable
What’s an impleader?
There, D is bringing in someone new. The new party
is the third-party defendant (TPD).
If you have an impleader claim, must you assert it in this case?
No - its not compulsory
What circumstances bring about impleader? When can we use it? Why do we?
- 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).
Steps for impleading the TPD in the pending case:
a. D files a third-party complaint naming the TPD; and
b. Serve process on the TPD. (So must have PJ over TPD.)
Timing for Impleader
There is a right to implead within 14 days of serving your answer.
After that, you need court permission.
After TPD is joined, may plaintiff assert a claim against TPD?
Yes, if the claim arises from the same T/O as the underlying case.
After TPD is joined, may TPD assert a claim against plaintiff?
Yes if the claim arises from the same T/O as the underlying case.
Subject Matter Jurisdiction & Impleader
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.
What is Intervention?
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.”
What are the types of Intervention?
- Intervention of right
- Permissive intervention
Intervention of Right
Intervention of Right occurs when you would be a necessary. Same rules. Thus if you are necessary, you may intervene
Permissive intervention
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.
Intervention and SMJ
Assess claim by/against the intervenor for subject matter jurisdiction (diversity or FQ. If neither applies, then try supplemental).
Class Action
Representative(s) (“Rep”) sues on behalf of group.
Initial Requirements for Class Action and what about them
Must demonstrate all four of these:
- Numerosity
- Too many class members for practicable joinder - no magic #
- Commonality
- There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.
- Typicality; and
- Rep’s claims are typical of those of the class
- Representative adequate
- The class representative will fairly and adequately represent class.
What are the next steps for class action ones the initial requirements are met?
Must fit the case within one of three types:
- TYPE 1: “Prejudice”: class treatment necessary to avoid harm (prejudice) either to class members or to the non-class party.
- TYPE 2: Class seeks an injunction or declaratory judgment because D treated the class alike.
- example: Employment Discrimination
- Cannot recover damages
- TYPE 3: “Damages”: (Example: Mass Tort)
- common questions predominate over individual questions; AND
- class action is the superior method to handle the dispute.
Whats a Prejudice type of class action all about?
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.
Which type of class action requires notice?
Type 3 - Damages
Rep’s complaint will say “class action.” But a case is not a class action until what?
Until the court grants a motion to certify it
And when the court certifies the class action, it must:
- “define the class and the class claims, issues, or defenses.”
- And Appoint class council
What is required of class counsel?
Class counsel must fairly and adequately represent the interests of the class
In a Type 3 Damages Class Action - what else is required?
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.
Who pays to give this notice in Type 3 Damages Class Actions?
The representative
Who is bound by the judgment in a certified class action?
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.
Can the parties settle or dismiss a certified class action?
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.
How is Diversity for SMJ satisfied in class action?
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.
Class Action Fairness Act (CAFA)
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).
Jury Trial
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”).
what is a motion in limine?
A pretrial motion to decide whether the jury should hear certain evidence.
Right to jury trial in federal court
Seventh Amendment preserves the right to jury in “civil actions at law,” but not in suits at equity.
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).
The jury decides the facts underlying the damages claim, but not the equity claim
In what order will the trial usually proceed?
Try jury issues first
Does the Seventh Amendment apply in state court?
No
How to obtain a jury & timing
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.
“Voir Dire”
In the jury selection process (“voir dire”), each side might ask the court to strike (remove) potential jurors.
There are two kinds of challenges to jurors:
Is there a limit to each of these
- “For cause” – e.g., potential juror will not be impartial.
- No limit
- “Peremptory” – historically, one did not need to state a reason – you just dismiss the potential juror.
- 3 per side
How may peremptory strikes be used and why?
Peremptory strikes may only be used in a race and gender-neutral manner.
Because jury selection is State action
How many jurors are on a civil jury in federal court?
Minimum 6; Maximum 12
Unless the parties agree otherwise, what jury vote is required for a verdict?
Unanimous
Jury instructions
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.
Must the parties be allowed to make specific objections to the jury instructions and to the rejection of proposed instructions?
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.
One exception: if a party did not object timely, a court can consider a jury instruction if it contained:
Plain Error that effects substantial rights
Types of verdicts.
The judge determines what verdict form the jury will use.
- General
- Special
- General verdict with special interrogatories
General verdict
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.
Special verdict
Here, the jury answers specific questions about the facts in dispute. The judge then reaches legal conclusions based on the facts found.
General verdict with special interrogatories
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.
If the jury returns a general verdict, who enters the judgment?
Clerk of the Court
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?
The judge approves the judgment, and the clerk enters it
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)?
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.
Juror misconduct
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.”
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?
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).
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?
The judge
What must the judge record in a bench trial?
- findings of fact
- conclusions of law separate from the findings of fact
- The judgment
Motion for judgment as a matter of law (JMOL).
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.
Why would a judge grant JMOL and refuse to let the jury decide the case?
Because reasonable could not disagree on the result
How is evidence viewed for JMOL?
Like summary judgment, the court views the evidence in the light most favorable to the non-moving party.
When can a party move for JMOL?
After the other side has been heard at trial
Renewed motion for judgment as a matter of law (RJMOL).
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
When is RJMOL Proper?
Must have moved for JMOL at trial. Then we use RJMOL because the jury reached a conclusion that reasonable people could not have reached
If RJMOL is granted…
the court enters judgment for the party that lost the jury
verdict!
When do you move for RJMOL?
Within 28 days after entry of judgment.
What is an absolute prerequisite to bringing RJMOL?
You must have moved for JMOL at a proper time at trial; if you did not do that, you waived RJMOL
Motion for a new trial
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.
Timing for motion for a new trial
Party moves for this within 28 days after judgment.
Examples of Errors in which a motion for new trial would be proper
- Judge gave an erroneous jury instruction;
- New evidence that could not have been gotten before with due diligence;
- Misconduct by juror or party or lawyer, etc.
- Judgment is against weight of the evidence (serious error of judgment);
- Inadequate or excessive damages.
What are your options if you waive RJMOL?
Motion for new trial
Ordering new trial is less drastic than ordering RJMOL. Why?
It results in starting over, so so the same party might still win
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?
The damages figure shocks the conscience
But new trial is a lot of work. To avoid a new trial, the court might suggest…
remittitur or additur
Remittur
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.
Is remittitur OK in state and federal court?
Yes - ok in both
Additur
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.
Is additur OK in state and federal court?
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.
Motion for Relief from Order or Judgment.
Here, we ask the district court to set aside an order or judgment it entered
Types of Motions for Relief from Order or Judgment and their respective timings
- Clerical error
- Anytime
- Mistake, excusable neglect
- Reasonable time (never more than 1 year)
- New evidence that could not have been discovered with due diligence for a new trial motion
- Reasonable time (never more than 1 year)
- Judgment is void (e.g., no SMJ)
- Reasonable time (no maximum)
Final Judgment Rule
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.
Timing for Filing an Appeal and where
File notice of appeal in trial court within 30 days after entry of final judgment
To determine if a ruling is a final judgment, ask one question – after making this ruling:
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.
Is Denial of a motion for summary judgment final?
No. After denying summary judgment, the trial court still has the entire case before it.
Is Grant of a motion for new trial final?
Not Final - TC must hold the new trial
Is Denial of a motion for new trial final?
Final - you must appeal within 30 days of the denial
Is a Grant of a motion to transfer the case to another district final?
Not Final
Is Grant of a motion to remand to state court final?
Generally Not Final
Interlocutory (Non-Final) Review.
May be appealable even though not final judgments.
Interlocutory orders reviewable as of right: orders granting, modifying, refusing preliminary or permanent injunctions.
Interlocutory Appeals Act. Allows appeal of nonfinal order if…
(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.
“Collateral order” exception
Appellate court has discretion to hear ruling on an issue
if it:
(a) is distinct from the merits of the case,
(b) involves an important legal question, and
(c) is essentially unreviewable if parties must await a final judgment.
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?
Yes - if it also expressly finds there is no just reason for delay
Class action
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
Extraordinary writ (mandamus or prohibition)
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.
When the district judge decides questions of law, by what standard does the court of appeals review?
De Novo - no deference to the district judge
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?
The content of a jury instruction is a question of law
In a non-jury trial, when the district judge determines questions of fact, the court of appeals will affirm unless:
the findings are clearly erroneous
And due regard must be given to the trial judge’s opportunity to assess credibility of witnesses at trial.
In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless:
reasonable people could not have made that finding
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:
the district court abused its discretion
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?
That is reviewed for abuse of discretion
Not every error (even an error of law) requires reversal on appeal. No reversal is required if the error is:
Harmless
Basic Idea of Claim Preclusion
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).
If Case 1 and Case 2 are in different judicial systems (e.g., state and federal), the court in Case 2…
applies the preclusion law of the judicial system that decided Case 1.
Claim Preclusion (Res Judicata)
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
Requirements for Claim Preclusion (Res Judicata).:
- Case 1 and Case 2 were brought by the same claimant against the same defendant.
- Case 1 ended in a valid final judgment on the merits.
- Case 1 and Case 2 asserted the same “claim.”
Case 1 and Case 2 asserted the same “claim.” requirement for preclusion - the 2 views:
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.”
Issue Preclusion (Collateral Estoppel)
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.
Requirements for Issue Preclusion (Collateral Estoppel)
- Case 1 ended in a valid, final judgment on the merits.
- The same issue was actually litigated and determined in Case 1
- The issue was essential to the judgment in Case 1. That means the finding on this issue is the basis for the judgment.
Against whom can issue preclusion be asserted?
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.
By whom can issue preclusion be asserted?
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).
When someone who was not a party to Case 1 tries to use issue preclusion in Case 2, it is called:
“Nonmutual” issue preclusion
“Nonmutual” issue preclusion comes up in 2 ways
- Defensive nonmutual issue preclusion
- Offensive nonmutual issue preclusion
Defensive nonmutual issue preclusion
the one using it was not a party to Case 1 and is D in Case 2
Its ok if:
- the same issue litigated and determined in Case 1
- that issue essential to the judgment in Case 1
- 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
Offensive nonmutual issue preclusion
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):
