Final Flashcards
Least Favored Defenses
Rule 12(h)(1): USE IT OR LOSE IT Rule 12(b)(2)-(5) defenses must be raised in a pre-answer motion (or in the answer if there is no pre-answer motion) or they will be waived (personal jurisdiction, improper venue, insufficient process, insufficient service of process)
Most Favored Defenses
Rule 12(h)(3) Lack of subject-matter jurisdiction can be raised at any time, even on appeal. It can't be waived.
Favored Defenses
Rule 12(h)(2) Rule 12(b)(6)-(7) defenses can be raised in any pleading, motion for judgment on the pleadings, or at trial IF they were not known to the party when the original pre-answer motion was made
Temporary Restraining Order (TRO)
- May be issued without notice if specific facts in an affidavit or verified complaint clearly show immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard.
- Movant’s attorney must certify in writing any efforts made to give notice and why it should not be required.
- Expires in 14 days unless extended by the court.
- See Rule 65
Preliminary Injunction
- Preserves the “status quo” while litigation is pending.
- Notice must be given to the adverse party.
- See Chalk Test and Rule 65
Federal Jurisdiction Requirements
- suit involves a question of federal law (can also be heard in state court; must arise in the complaint, not a defense) OR
- the value at stake exceeds $75k AND no P shares state citizenship with any D
Rule 11 Sanctions
- Don’t apply to discovery.
- Claim is being made for an improper purpose.
- Not enough factual/evidentiary support for claim which would have been evident if investigated.
- not warranted by existing law.
- Monetary sanctions can’t be imposed on their own (unless following a show cause order) or on a rep. PARTY for a (b)(2) violation.
- Order has to explain the basis for the sanction.
Summary Judgment
- NO genuine dispute as to any material fact.
- Movant is entitled to JMOL.
- Can be filed any time until 30 days after the close of discovery.
Ways to Prove No Genuine Issue of Material Fact (Summary Judgment)
- Present evidence affirmatively showing the absence of a genuine issue.
- Pointing to a lack of evidence on the record to support the other party’s claims.
- Simply move for it, then the nonmoving party has to show there is a genuine dispute of material fact.
What should a party do when a judge is biased?
28 USC 455: Motion to Recuse when there is the appearance of partiality or actual partiality.
Elements of a Complaint
- Short plain statement.
- State a claim showing that the plaintiff is entitled to relief.
- Contain a demand for relief.
Chalk Test
- Movant’s probability of success on the merits
- Irreparable injury to movant if the preliminary injunction is denied.
- Balance of hardships (Is injury to movant if the injunction denied outweighed by the injury to non-movant if the injunction is granted?)
- Some districts may ask: is it in the public’s best interest to grant the injunction? (Some courts consider this as part of factor #3)
Can a party plead in the alternative or with inconsistencies?
Yes, but ONLY IF they don’t have actual knowledge about the circumstances and they conducted a reasonable investigation into the matter (or else it is a Rule 11 violation).
When can something be stricken?
Under Rule 12(f), when it is impertinent, immaterial, or redundant.
How should you respond if a complaint doesn’t make sense or is overly vague?
Rule 12(e): Motion for a More Definite Statement The pleading has to be so vague that you cannot form a response. Has to be in a pre-answer motion. Cannot follow the answer.
Twombly in a nutshell
A complaint must allege sufficient facts that, if accepted as true, would “state a claim to relief that is plausible on its face” in order to defeat a motion to dismiss for failure to state a claim. Plausible means that it is more than speculative, but doesn’t have to be probable.
Iqbal in a nutshell
Expanded the Twombly Rule beyond just antitrust cases. A complaint that only states legal conclusions is not sufficient. Legal conclusions aren’t assumed to be true. It isn’t enough to just recite the elements; the complaint must contain facts that support an inference of P’s allegations.
Supplemental Jurisdiction
A federal court can have supplemental jurisdiction over the matter when it is between the same parties and is related to the same transaction/occurrence as the primary suit that has federal jurisdiction. The court can decline supplemental jurisdiction on an issue.
Two Main Types of Jurisdiction
Subject-Matter: whether the court can hear that type of case
Personal: whether the court can enforce a judgment against the parties
Can questions of federal law be filed in state court?
Yes
Can questions of state law appear in federal court?
Yes, if there is complete diversity and the amount at stake exceeds $75,000.
Where is a corporation a citizen?
(1) the state where it is incorporated and
(2) the state where it has its principal place of business.
In what state is a U.S. citizen considered a citizen?
The state of domicile: the state in which the person has her principal home, with the intent to remain indefinitely.
Complete Diversity
No plaintiff shares citizenship with any of the defendants.
Where is a foreign national considered to be a citizen for the purposes of the diversity requirement?
The requirement is typically met unless the foreign national is domiciled (residing legally) in the same state as the other party, in which complete case diversity isn’t achieved.
Amount in Controversy in Federal Jurisdiction Cases
- P can file multiple claims that add up to $75k to reach it.
- If nonmonetary relief is sought, judged by cost to D or value to P.
- Before fees and costs.
- Multiple Ps can add their claims to get to $75k if they are jointly seeking relief.
- P can file claims against multiple D’s to get to $75k if they are jointly liable.
Compulsory Counterclaim
- Use it or lose it.
- Same transaction or occurrence.
- Doesn’t have to satisfy the amount in controversy.
- Doesn’t have to have SMJ because can still qualify for supplemental jurisdiction.
Rule 13(a)
Permissive Counterclaim
- A permissive counterclaim arises from separate facts and occurrences.
- P can raise it in a separate cause of action.
- Still has to satisfy the amount in controversy.
- Requires SMJ.
Rule 13(b)
Exclusion to Supplementary Jurisdiction
Claims by plaintiffs against parties brought into the case as third-party defendants or required parties or by permissive joinder or intervention, if those claims would violate the requirements for diversity jurisdiction
Removal
- D can remove a case from state to federal court without P’s permission.
- If multiple D’s, all must agree.
- If the jurisdictional requirements are not met, federal court can remand it back to state court.
Judicial Disqualification
- If person is within three degrees of relationship.
- Financial/fiduciary interest.
42 USC § 1983 Claim
- D acts as representative under the state.
- D deprives P of rights under state law.
Real Party in Interest
The party the one who actually possesses the substantive right being asserted and has a legal right to enforce the claim.
Party can assign their rights to someone else.
Venue
The specific geographic location usually dictated by a statute (within a forum).
Forum
Typically referring to the state.
How does the court determine if it has personal jurisdiction over a party?
Minimum Contact (Int. Shoe v. WA) Continuous, Related = Jurisdiction Non-Continuous, Related = Maybe Non-Continuous, Unrelated = No Jurisdiction Continuous, Unrelated = Maybe
Where is a person domiciled?
Where they intend to remain indefinitely. May be evaluated by where they got their license, where they are registered to vote, etc.
Format of Pleadings
Numbered paragraph form. Responses don’t have to correspond, but it is preferred.
Fraud or Mistake Pleading Standard
- Facts must be pled with particularity.
- Shifts standard from plausible to probable.
- Conditions of the mind like intent can be plead generally.
- Tellabs v. Makor (SCOTUS): “As compelling as any opposing interest.”
Rule 9(b)
How long does the defendant have to file an answer?
21 days
How long does the defendant have to file an answer if they file a pre-answer motion?
21 days extended to 14 days following the ruling on the pre-answer motion
How do you get rid of excess stuff in a pleading?
12(f) Motion to Strike: Get rid of anything impertinent, immaterial, or irrelevant.
When would you make a Rule 12(b)(7) motion for failure to join a required party?
When a party is compulsory/required under Rule 19(b), but joining them is unfeasible and the litigation cannot go on without them.
What happens when a party doesn’t respond to a complaint?
Default is entered. If it is for a fixed amount, the clerk can enter it. If it is for unspecified damages, the judge must enter it. If the party has appeared before, they are given 7 days written notice before the default judgment hearing by the judge.
What can the defendant do if a default judgment is entered?
They can request that it be set aside under Rule 55(c)/60(b) if they show good cause.
Factors in Determining whether a Court will Set Aside a Default Judgment
- Whether P will be prejudiced
- Whether D has a meritorious defense
- Whether culpable conduct of D led to the default
What happens if a party doesn’t admit or deny the claims against it?
They are assumed to have been admitted.
Affirmative Defenses
Use it or lose it - must be raised in pre-answer or answer. It cannot be raised for the first time at trial.
Motion for Judgment on the Pleadings
Rule 12(c)
- Can be raised by P or D after the answer.
- All facts are assumed to be true in the pleadings.
- Gives D another chance if 12(b)(6) was dismissed.
Test for whether a Counterclaim is Compulsory
- Are the issues of fact and law the same?
- Will the same evidence likely be used?
- Is there a logical relationship between the two?
What is a crossclaim?
- A claim one D makes against another D.
- Never compulsory (could be raised in another suit).
- Crossclaim has to be related because it would be too confusing otherwise.
- Can’t be used to bring in someone who isn’t already a party.
How long does P have to amend her complaint?
21 days after the answer. After that, the court’s permission is needed. P is usually granted at least one chance to amend.
When would a court deny a request to amend?
If the amendment will result in undue prejudice to the other party and/or it has been unduly delayed.
Relation Back
Allows P to amend the complaint, even if the SOL has run on the new claim.
Three part test:
1. New claim must arise from same T/C
2. The new party to be named as D had to have received notice within 90 days of when suit was originally filed
3. New party had to have known or should’ve known they were the correct D
Voluntary Dismissal
- P can voluntarily dismiss before D files an answer or motion for SJ.
- Notice, not a motion.
Joinder of Claims
Rule 18
- Court must have SMJ over the new claim.
- A party can join as many claims as they want.
Compulsory Joinder
Rule 19
A rule for D to say that another D who needs to be there isn’t.
When is joinder of parties required?
- the absentee party is a necessary party
2. joinder is feasible
How does the court determine if a party is necessary?
- The party is needed for the Court to produce complete relief.
- The party has a significant interest in the action.
- Leaving the party out of the action would leave them open to the risk of incurring double/multiple/inconsistent judgments.
What if joinder is required, but infeasible?
The court must determine whether it is fair to proceded without the party. Factors:
- Prejudice against missing party
- Extent to which prejudice can be avoided
- Whether judgment without the party would be adequate
- Whether P will have an adequate remedy if the action is dismissed
When is joinder infeasible?
- Service of process can’t be achieved
- SMJ issues are raised because complete diversity would be ruined
- Venue issues to which the absentee objects
How can P add parties?
Through permissive joinder P can add more Ps or Ds (Rule 20). D cannot use this rule. If you talk about Rule 20, you have to talk about efficiency.
When can parties join as plaintiffs? When can the plaintiff add defendants?
- they jointly assert a right to relief
- the claim arises out of the same T/C
- there are common questions of law and fact
~ when uniting the claims is more efficient ~
Do all parties P joins have to be tried together?
No, not if it is against the best interest of a party Rule 20(b)
What should a party do if they think that other parties were incorrectly joined?
File a motion under Rule 21 (misjoinder and nonjoinder)
How can a defendant add a third-party to the litigation who is liable to the defendant?
Impleader (Rule 14)
Tool for defendants.
Core Concept: Derivative Liability
Third-party has to be served within 14 days of filing the answer or D must seek leave.
Just because D is liable to P doesn’t mean third-party is liable to either.
If SMJ isn’t met, supplemental jurisdiction can cover D’s claim against the third-party.
How can a party initiate a claim over a stake?
Interpleader (Rule 22) or Statutory Interpleader (128 USC 1335)
Defensive (already D) or offensive (may become D so initiates suit to avoid it and bring in potential stakeholders)
Differences between Statutory and FRCP Interpleader
Rule 22 requires complete diversity, but statutory requires only minimal diversity (at least two claimants must reside in different states).
Statutory requires stake in escrow.
Statutory only has $500 threshold, Rule 22 requires $75k.
How can a nonparty add themselves to the litigation?
Rule 24: Intervention
A device for an outsider who has an interest in the lawsuit to voluntarily join.
Matter of Right vs. Permissive (see other cards)
How does a party who wants to intervene prove intervention as a matter of right?
Rule 24(a)(2)
- Lawsuit carries a possibility of detriment to him serious enough to entitle him to participate as a litigant
- None of the parties already in the case can adequately represent the intervenor
- Must be timely
How Court Assesses Permissive Intervention
- when the intervenor knew or should’ve known about their interest in the case
- whether there is prejudice to existing parties from the delay in seeking intervention
- whether there would be prejudice to the intervenor if the intervention was denied
- any other unusual circumstances
What is permissive intervention?
Rule 24(b)
- Intervention is permissive when savings of the party and judicial resources outweigh the costs.
- Court can let a party intervene but limit their participation.
- Must be timely.
- Has to have overlapping questions of law or fact.
Class Action Threshold Requirements
Rule 23(a)
- numerosity
- commonality
- typicality
- adequacy of representation
Additional Class Action Requirements
Rule 23(b) Must meet one:
- separate actions would put D in a position of conflicting outcomes OR impede the ability of others to protect their own interests
- the party in opposition has acted or not acted in a way relevant to all class members
- catch-all: common issues of law and fact predominate all other individual issues and a class action is superior to other methods (like joinder)
Money Damages in Class Actions
If money damages are sought, all plaintiffs must be seeking the same money damages. That is why typically class actions are injunctive and then plaintiffs can litigate damages claims individually.
When does notice have to be given to class members?
ALWAYS when its a Rule 23(b)(3) class.
When the judge orders it if it’s a Rule 23(b)(1) or (2) class.
When is a class too numerous to warrant individual litigation?
- too difficult to join all of them practically
- whether one attorney could still represent all plaintiffs in identical pleadings
- the geographic location of the plaintiffs
Who is the active litigant in a class action?
Only the party representative. All others have given up their right to relitigate unless they opted out and are bound to the court’s decision.
When can class actions apply to future members of the class?
When their interests are adequately represented.
What has to be disclosed during initial disclosure?
- Individuals with discoverable information and the topics of that information
- Only information that will be used to support claims (not impeachment material)
- Computation of damages information and any insurance agreements
- Expert name with any report made by a specially retained expert or employee who regularly testifies
- Not information harmful to client
When do initial disclosures take place?
Required within 14 days following the Rule 26(f) conference.
When does expert testimony have to be disclosed?
- Preliminary report must be made available in initial disclosure.
- Complete report has to be disclosed 90 days before trial (or 30 days before if it is only used to rebut the other side’s expert)
Classifications of Experts and Discoverability
- Specially retained for litigation and may testify = deposable
- Specially retained but not testifying = report only discoverable if requesting party can show “exceptional circumstances and impracticability”
- Employee who does work in anticipation of litigation = work product (see exceptions)
- Expert who did relevant work for the company in the past = report is discoverable
Pretrial Disclosures
- Address and phone number of each witness
- Witnesses that are likely to be deposed must be designated
- Identification of documents or other evidence that the party expects to offer with descriptions
When are pretrial disclosures made?
At least 30 days before trial.
Proportionality Analysis for Discovery
- Whether resources available to both parties meet the request.
- The importance of the issue being resolved.
- Whether the burden or expense outweighs the benefit of the party obtaining the info.
- Has to be relevant, even if not admissable.
How many depositions can each party take?
10 per side, but the court can let a party take more
How long can a deposition be?
7 hours max
What does work-product protection cover?
Anything (oral or written) created in preparation for litigation by parties, their attorneys, or other representatives
How can a party protect information in discovery?
Get a protective order under Rule 26(c)
Any party from whom discovery is sought can move for one
What begins discovery?
Rule 26(f) planning conference Parties must submit plan to the court within 14 days following the conference
Interrogatories
- Limited to 25 per side
- Only useful for basic informaiton
- Only parties answer
How do you request documents or entry during discovery?
Rule 34
Only discovery device that requires a court order
physical and mental examinations
they have to be at issue in the case
How can you entice a party to respond if they aren’t cooperating in discovery?
Rule 36: request for admission
How does a party respond to request for admission?
must admit, deny, or explain why they can’t
if no response, all are admitted
When does Rule 26(g) come into play and how?
When an attorney signed discovery or disclosure requests that are false, burdensome, unlawful, or improper. Sanctions MUST be imposed.
No Rule 11 sanctions.
What can you do if a party doesn’t respond to your discovery requests?
Rule 37(a) Motion to Compel Discovery
What does a motion to compel discovery have to contain?
certification of efforts to obtain discovery without court interference
When do discovery sanctions have to apply?
Rule 26(g) violation or for failure to comply with a Rule 37(a) motion to compel discovery
When can summary judgment be raised?
After the close of discovery, but no more than 30 days after it ends.
When is summary judgment granted?
When the movant shows that there is no genuine issue of material fact.
Non-Movant’s Responses to Summary Judgment
- Do nothing
- Present an affidavit to show why it can’t present facts to oppose SJ
- Cross-motion for SJ
What happens if either party fails to meet their burden in SJ?
- the court can let it try again
- the court can consider the fact undisputed for the purposes of the motion
- summary judgment can be granted if warranted
- another appropriate order can be issued
Three Approaches to SJ
- movant shows evidence affirmatively showing the absence of a genuine issue (disproving an element of nonmovant’s claims)
- movant shows lack of evidence supporting the non-movant’s claims
- movant simply moves for summary judgment
JMOL Standard
No reasonable juror could find for the party.
Only evaluates evidence, doesn’t weight it or look at witness credibility.
JMOL pre-jury verdict
Motion after one or both parties has presented evidence.
JMOL post-jury verdict
Motion must be raised before jury verdict, then re-raised within 28 days after the jury verdict.
Why should a party move for both JMOL and a new trial?
If JMOL is granted but later overturned on appeal, then the request for a new trial allows the moving party to protect themselves and preserve their options because motion for a new trial can’t be made longer than 28 days after judgment is entered.
Court denies JMOL, but grants new trial.
Can’t appeal. Litigation hasn’t ended.
Court grants JMOL, and conditionally grants new trial.
Can appeal. Litigation ended.
Court grants JMOL, but conditionally denies new trial.
Can appeal. Litigation is over.
Court denies JMOL and denies new trial.
Can appeal. Litigation is over.
When can a court weigh the evidence?
When granting a new trial, not when granting JMOL.
When does a motion for a new trial have to be filed?
Within 28 days of the judgment being entered.
When can a person get relief from final judgment?
Within 1 year following the judgment if mistake, fraud, etc. is discovered.
What does the opposing party do when the other party moves for a new trial?
Responds within 14 days with affidavits opposing the motion.
