hypos 9 Flashcards
D has signed a loan contract agreeing to repay P $500,000 plus interest on a certain date. The date passes without D paying the money and P sues. D fails to answer the Complaint, and P obtains a default under Rule 55(a).
What will happen next?
P’s claim is for a sum certain because the amount P is owed is readily calculable from the contract. It is $500,000 plus the specified interest plus P’s costs as the prevailing party.
Thus, P can use Rule 55(b)(1). P can file an affidavit computing his damages with the clerk, and the clerk will enter a default judgment in P’s favor for that amount.
P is injured in a car accident with D and suffers serious injuries. P sues D alleging that D negligently caused the accident and claims that she is entitled to medical expenses, lost wages, and pain and suffering. D fails to answer the complaint and P obtains a default under Rule 55(a).
P’s claims are not for a sum certain. While her medical expenses may be reasonably easy to calculate, her lost wages and pain and suffering are not.
P will have to move for a default judgment under Rule 55(b)(2). The judge will likely hold an evidentiary hearing at which P will have to prove how much her pain and suffering and lost wages are worth (using witnesses and documents).
P files suit against D in N.D. Ill. alleging that D breached a contract and owes substantial damages. After the pleading stage was completed, P’s lawyer served all the parties with notice that she was withdrawing from the case. Thereafter, P makes no discovery requests. Three months have passed.
What can D do?
The N.D. Ill. local rules indicate that at least six months of inactivity by P would be necessary before D could move for a dismissal. Thus in N.D. Ill. more time would have to pass before D could move for a dismissal.
In some jurisdictions, D need only show a pattern of delay. In such jurisdictions, D might already be able to move for a dismissal.
P sues D for patent infringement in federal district court. D replies with a counterclaim for breach of contract and seeks $25K in damages. D’s claim arises out of the same transaction as P’s patent infringement claim. P seeks a dismissal from the court under 41(a)(2), and D objects.
Can the court grant the dismissal?
P can’t voluntarily dismiss its claims if that would result in the dismissal of D’s counterclaims for lack of SMJ!
P sues D for patent infringement in federal district court. D replies with a counterclaim that seeks $25K in damages for violation of a federal statute. P seeks a dismissal from the court under 41(a)(2), and D objects.
Can the court grant the dismissal?
The federal court would continue to have SMJ over the counterclaim even after the dismissal of P’s claim. So, P is permitted to voluntarily dismiss its claim. But notice that this does not get rid of D’s counterclaim which remains pending for independent adjudication
Assume Jane Smart (a citizen of CA) sues GrowCo (a citizen of CA and DE) in federal district court alleging gender discrimination in violation of federal law.
What is the jurisdictional basis for this case?
Federal question doctrine.
Smart (CA) and GrowCo (CA & DE) then sign a settlement agreement that resolves their dispute and Smart dismisses her suit with prejudice. As part of the agreement, Smart agrees not to work with any of GrowCo’s competitors for six months after the date of the agreement. Two months later, Smart goes to work for a competitor. GrowCo wishes to sue to enforce the settlement agreement and try to force Smart to resign from the competitor.
Where can this suit be brought?
This is now a suit for breach of contract (the terms of the settlement agreement). Breach of contract is a state law claim, so there is no FQ.
Neither is there diversity jurisdiction because the parties are not diverse (both are CA citizens). So, this claim could only be brought in state court.
Let’s assume that GrowCo would prefer to bring this action to enforce the settlement agreement before the same federal district court judge that had heard P’s earlier claim (b/c the judge understands the case and GrowCo believes she is sympathetic to their concerns).
Is there a way to accomplish that?
Yes. A consent decree or stipulated judgment.
Federal courts have the inherent authority to enforce their judgments. If you put the key terms of the settlement agreement (including the non-compete provision) in a stipulated judgment, the court will then later have jurisdiction to hear claims that the parties are not complying with the court’s judgment.
Plaintiff files suit against Defendant alleging that D breached a contract with P for the delivery of goods. The contract contains a mandatory arbitration clause. D wishes to force P to arbitrate the dispute.
What should D do to force arbitration?
The arbitration provision is presumptively valid under FAA, Sec. 2.
D can seek a stay of the pending litigation under FAA, Sec. 3. (Notice that the pending litigation is stayed rather than dismissed.)
And D can ask the court to order P to arbitrate the matter pursuant to the arbitration clause. FAA, Sec. 4.
Imagine that your phone company adds a $5/month fee for “credit protection” to your bill without telling you. You pay $35 dollars before you notice the charge. You complain and they stop charging the fee but refuse to refund you what you already paid.
You look at the terms of your agreement with the phone company and realize it includes a mandatory arbitration provision and a provision that bars class actions.
What would you do?
Probably nothing. It isn’t worth suing or arbitrating over $35 even if what the credit card company did was illegal.
It might be worth arbitrating if it is a widespread practice, lots of other people have been effected, and you can sue/arbitrate together (i.e., a class action). But the arbitration provision (including the ban on class actions) is probably enforceable, so that isn’t really an option either.
You are an attorney representing a phone company. You are charged with drafting the contract that all your client’s customers will be required to sign before purchasing anything.
Should it contain an arbitration provision?
If so, what should that provision include?
Yes, it should contain a mandatory binding arbitration provision. Such a provision gives you a great deal of control over who can “sue” you, where they can “sue” you, what the resulting “litigation” will look like, etc. By controlling these things you can benefit your client. So, you should do it.
n addition to making arbitration mandatory, it should define what that arbitration will look like. You should consider including clauses (e.g., limitations on the amount of discovery) that will save your client money.
It should also include a provision barring class actions. This will cause many small claims (valid or otherwise) to simply disappear, which will also save your client money.
P sues D alleging that D signed a promissory note in return for a loan but failed to repay the loan. D answers and denies liability but raises no affirmative defenses. During discovery, D admits in a deposition that the note is genuine and that he did not repay the loan. D claims that he did not repay the loan because he lost his job and could not afford it. (This is not a valid defense to a contract.)
Would P prevail at trial?
Is a trial necessary?
Is there another option for P?
obvi summary judge
P sues D alleging that D ran a red light and struck P causing P serious injuries. D answers and admits failing to running the red light and striking P, raises no affirmative defenses, but disputes the amount of damages. During discovery, D obtains witness testimony that the impact was so slow that P suffered only very minor scrapes and bruises.
Can P obtain a summary judgment against D
P can probably obtain a partial summary judgment against D. D has essentially conceded the liability portion of P’s claim by admitting that D ran a red light and struck P.
However, D is contesting the amount of P’s harm and has presented some evidence that P’s harm was not as serious as P claims.
The probable result would be a partial summary judgment in P’s favor on liability, but the issue of harm is contested, so the trial would go forward.
But it would be limited to only the question of how much P was harmed.
Plaintiff sues Defendant for injuries suffered during a traffic accident. Plaintiff alleges that D owed her a duty to drive with reasonable care, that D was driving negligently at the time of the accident because he ran a stop sign, that D’s negligent driving was the cause of the accident, and that Plaintiff was seriously injured as a result.
Defendant answers, denies that he drove negligently, files a counterclaim alleging that Plaintiff was the one driving negligently because she was the one that ran the stop sign, and that her negligent driving caused Defendant’s injuries, and raises an affirmative defense of contributory negligence.
P sues D for racial discrimination. Juror A goes through voir dire and is asked if she knows P. A says no and is placed on the jury. Jury grants verdict for P. Afterwards, D’s lawyer notices P and Juror A talking very animatedly and hires a PI to find out more about Juror A. It turns out that Juror A is P’s cousin and they are good friends.
Can D obtain a new trial?
Yes. Juror A has lied about a question during voir dire. They said they did not know P but they did. And the correct answer (that she was P’s cousin and good friend) would have got her struck for cause because jurors are not supposed to be closely related to or good friends with either of the parties. Therefore, D is entitled to a new trial.