final 001 Flashcards
Ager Factors
The manner in which the consultation was initiated
The nature, type, and extent of the info or material provided by the expert
The duration and intensity of the consultative relationship
The terms of the consultation (if any- payment, etc)
Discovery Rules
Rule 26 – discovery in general
Range: 26+
Joinder Rules
13 - counterclaims/crossclaims
14 - impleader
15 - amended pleadings (relation back)
18 - joinder
19 - compulsory joinder (required parties)
22 - interpleader (stakeholder)
USC 1335 - creates SMJ
USC 1397 - creates venue
USC 2361 - creates personal jurisdiction
USC Subject Matter Jurisdiction Rules
1331 - Federal Question Jurisdiction
1332 - Diversity Jurisdiction
1367 - Supplemental Jurisdiction
1404 Factors
1404 - proper venue
1406 - improper venue
public/private interest factors
Convenience of the parties
Convenience of the witnesses
The interest of justice
REA/RDA
2072 - Rules Enabling Act – enables the federal court to use its own rules
1652 – no FRCP rule on point
Erie Balancing Factors
Which choice will best serve the twin aims of Erie (those being discouraging forum-shopping and avoiding inequity)
Whether the choice of federal or state law determines the outcome
This is a york thing
Whether the state law expresses a strong state interest AND
Whether a countervailing federal policy should overcome state law
Louisville & Nashville Railroad Co. v. Mottley
*Well pleaded complaint rule: one that sets forth only a claim, unadorned by anticipated defenses or other extraneous material
Grable/Gunn factors
Federal jurisdiction over a state law claim will lie if a federal issue is
Necessarily raised
Actually disputed
Substantial
Capable of resolution in federal court without disrupting the federal-state balance
Shady Grove
Analyzing the REA prong of Hanna (2072)
[summary]
Taylor v. Sturgell
The nonparty agrees to be bound by the first judgment
For example, if separate actions involving the same transaction are brought by different plaintiffs against the same defendant, all parties to all the actions may agree that the question of the defendant’s liability will be definitively determined in a sort of “test case”
There is a “substantive legal relationship” between the person to be bound and a party to the judgment
preceding and succeeding owners of property, bailee and bailor, assignee and assignor
The nonparty’s interests were adequately represented by someone with the same interests who was a party to the first judgment
Class actions, suits brought by trustees, guardians, fiduciaries
The nonparty assumed control over the prior litigation
The nonparty is acting as a proxy for a party from the first case
A special statutory scheme that is consistent with due process, such as bankruptcy or probate proceedings, expressly forcloses successive litigation by nonparties.
Claim preclusion (res judicata)
The cases must involve the same claim/cause of action
The parties must be identical or “in privity”
The first case ended in a valid, final judgment on the merits
Approaches to claim preclusion - jx split
Primary rights
A person has a right to recover for things like property damage and personal injuries, so those would be two separate claims. Litigating one would not preclude the other.
Single tortious act
Same transaction/occurrence
Issue Preclusion (collateral estoppel)
The two parties are identical or “in privity”
The issue in question is identical to an issue of fact or law in the first case
The first case ended in a valid and final judgment
The issue was actually litigated in the first case
The issue was necessary to the judgment in the first case
The party against whom preclusion is asserted had a full and fair opportunity to litigate the issue in the first case
Offensive issue preclusion - factors
Usually not permitted because it may increase, rather than decrease litigation. But federal courts will allow it on a case-by-case basis. The courts consider whether it is fundamentally fair to the defendant using factors
The defendant had a full and fair opportunity to litigate the issue in the first case
The judgment relied on for preclusion is inconsistent with any prior judgments in favor of the defendant
The plaintiff could have participated in the prior case but chose not to so as to gain some tactical advantage
Rule 12 defenses that can be waived if not made in the original responsive pleading
lack of personal jurisdiction;
improper venue;
insufficient process;
insufficient service of process;
Rule 12 defense that can never be waived
lack of SMJ
Zubulake v. Ubs Warburg LLC cost-shifting factors for ESI
The extent to which the request is specifically tailored to discover relevant info
The availability of such info from other sources
Total cost of production compared to the amount in controversy
The resources available to each party
The ability of each party to control costs
Importance of issues at stake
Relative benefit to the party obtaining info
Hertz v. Friend
A corporation’s principal place of business, for federal diversity jurisdiction purposes, refers to the place where the corporation’s high level officers direct, control, and coordinate the company’s activities. (The “nerve center” test)
traditional bases of personal jurisdiction
A state has jurisdiction over a defendant who
Is currently domiciled in that state or
Is physically present in the state when served or
Appears in court and gives express consent to waive personal jurisdiction
McGee
Due process is satisfied if it does not offend traditional notions of fair play and substantial justice (I-Shoe)
Fairness factors
Burden of the defendant
Forum state’s interest
Plaintiff’s interest in obtaining convenient and effective relief
Interstate judiciary’s interest in resolving controversies
Interests of substantive social justice
Asahi & the stream of commerce
The fact that a manufacturer could foresee that its product might one day enter a state through the stream of commerce is insufficient to create personal jurisdiction in the absence of purposeful action directed at the forum state, according to O’Connor.
However, there are times when the “stream” is really a river with a substantial amount of product entering the forum state. Brennan says that in those cases, jurisdiction would be proper.
Venue is proper when
Section 1391
Any defendant resides (not just where they have citizenship)
A substantial part of the events or omissions giving rise to the claim occurred or where a substantial amount of the subject property is located
if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action
Removal/Remand
Section 1446
A defendant may remove a state case to a federal court that has subject matter jurisdiction. This court must be in the same district as the state court. (Section 1446)
The plaintiff can then move to remand it back to state court if there was no subject matter jurisdiction or the procedural requirements were not followed
In-state defendant rule
1441(b)(2)
Diversity cases ONLY
A case cannot be removed if one of the defendants is a citizen of the state where the case was filed
