FRCP Motions/Pre, During, Post-Trial Motions

Question 1

Rule 19

Answer 1

Mandatory Joinder

Question 2

Mandatory Joinder

Answer 2

FRCP 19
3 qs to ask
1. Absent party necessary?
Necessary = a) interest that might be impaired if left out OR b) complete relief cannot be issued in absence OR c) not joining would subject parties to inconsistent/duplicative liability
2. Joinder ruin s.m or p. jx?
No = join party
Yes = Step 3
3. Cannot be joined–indispensable?
Yes = MUST dismiss suit
No = can continue w/out party

Question 3

Necessary Party

Answer 3

Necessary under R19 (joinder) IF
1) Interest impaired if left out (ex. if suing for return of art, need guy w/ art) OR
2) Complete relief cannot be issued in absence (ex. current def. has no money) OR
3) Inconsistent/duplicative liability (ex. paying twice for same action)

Generally ≠ joint tortfeasors–can sue each other for recovery

Question 4

Indispensability Under R19

Answer 4

Mandatory Joinder–courts consider:
-Extent of prejudice
-Ability to lessen by shaping relief
-If P can file in another forum

V. discretionary/subjective–esp. re: ability to refile

Question 5

Rule 23

Answer 5

Formation of Class Action

Question 6

Class Certification Reqs

Answer 6

1) Numerosity–joinder impractical
2) Commonality–qs of law or fact common to class
3) Typicality–claims of class rep typical of class members
4) Representativeness–both class rep. + atty will fairly + adequately protect interests of class

Question 7

Req for Proper Type of Class Action Claim

Answer 7

1) Sep. actions create risk of inconsistent judgements/ impair nonparty protection of interests
OR
2) Opp. party acted in ways generally app. to class (usually only re: injunction ex. poor prison food–damages differ, but from uniform treatment)
OR
3) Common qs of law or fact predom over individ qs AND c.a. superior for fair/efficient result (ex. stockholders re: fraud .–tech. have to figure out how much each person lost, but gen. easy task)

Question 8

Numerosity–R23

Answer 8

So many plaintiffs that joinder impracticable

Question 9

Commonality–R23

Answer 9

Class shares common qs of law OR fact

Question 10

Typicality–R23

Answer 10

Claims of class rep. are typical of class as a whole (most people got nosebleeds, class rep had stroke–N/A)

Idea–rep has incentive to litigate to protect class interests

Question 11

Representativeness–R23

Answer 11

Rep. parties (class rep AND lawyer) will fairly + adequately protect interests of class

Consider experience, skill, capacity, etc

Question 12

Class Action and Personal Jx

Answer 12

MUST have p. jx over all Ds AND all named Ps
DO NOT have to have p. jx over all members of class (not counted as “parties”)

Judgement binds whole class unless opt out (even if tech. no p. jx)

Question 13

Class Action Fairness Act (CAFA)

Answer 13

1) Class action based on diversity AND
2) Class has 100+ members AND
3) Seeks damages over 10M
THEN
Minimal diversity enough–any P diverse from any D

Also– home state defs can remove even w/out agreement (idea–want to get class actions into fed ct.)

Question 14

Rule 8

Answer 14

Requirements for proper complaint

Question 15

Requirements for Proper Complaint

Answer 15

FRCP 8
Must state:
1) Grounds for s.m. jx AND
2) Statement of facts suff. –> show P entitled to relief (Twiqbal–allege plausible claim w/ particularity, esp. if mistake/fraud) AND
3) Demand for relief and relief sought

Question 16

Rule 4

Answer 16

Service of process

Question 17

Service of Process (General)

Answer 17

Includes summons AND complaint

1) Manner proscribed by state court in jx where suit filed OR D served OR
2) According to FRCP 4

MUST be 18 or older to serve
MUST be non-party (lawyer OK)

Question 18

Failure to serve summons w/in 90 days of filing complaint

Answer 18

Dismissal with prejudice
Exception–good cause

Question 19

Service of Process (FRCP 4–Natural Person)

Answer 19

1) Personal service OR
2) To def’s usual adobe w/ person of suitable age + discretion who resides there OR
3) To D’s certified agent OR
4) Mail with request that def. waive service (if decline–D pays cost of service)

Suitable age + discretion–can be under 18 if fit reqs. + live in home

Question 20

Service of Process (FRCP 4–Corporation, Etc)

Answer 20

1) Delivery to an officer (or officer’s assistant) OR
2) Delivery to managing agent or gen agent OR
3) Delivery to any other agent authorized to receive service

Question 21

Constitutional Reqs for Service of Process

Answer 21

Main issue–due process–need notice and opp. to respond

Service = almost certainly = notice

No service: is method r. calculated to inform def of action v. him?

Question 22

R11 Affirmations

Answer 22

File = certify that
1) Good Faith–no improper purpose
2) Good Facts–have/expect evidence to support
3) Good Law–argument non-frivolous

Based on r. inquiry

Question 23

R11 Sanctions

Answer 23

Motion–must give opp. party 21 days to correct–safe harbor

Court sua sponte–must give opp to respond, but no req. follow safe harbor rules

Have lawyer = CAN’T be punished for bad law–firm j+ s liable
N/A if rep. self–you signed paper, out of luck

Question 24

R11 Scope

Answer 24

N/A re: discovery–different rules

Question 25

Preliminary Injunction Reqs

Answer 25

Weigh (Winters):
1) Likelihood of Success on the Merits
2) Risk of Irreparable Harm If Not Granted
3) Balance of Equities (is harm to def > harm to P if deny?)
4) Public Interest

MUST have notice + hearing

Question 26

Temporary Restraining Order vs. Preliminary Injunction

Answer 26

TRO = Can be w/out notice/hearing–ex parte
TRO = 14 days, + 14 day extension if good cause (v. PI–indefinite)

Question 27

TROs and Notice

Answer 27

Can have TRO w/out notice IF
1) Specific facts clearly show immed AND irrep injury likely before other party can be heard in opp AND
AND
2) Movant’s atty certifies in writing any attempts to give notice AND reasons why notice not req

R attempts at notice + spec. facts irrep harm likely–> get TRO, even w/out notice + hearing (but only for 14 days)