MBE Civ Pro MC Flashcards
1
Q
venue is proper where
A
any defendant resides, as long as all defendants reside in the same state (i.e., residency-based venue)
a substantial part of the events that gave rise to the suit occurred (i.e., events-based venue) or a substantial part of the property at issue is located (i.e., property-based venue) or
any defendant is subject to the court’s personal jurisdiction—but only if neither of the above provisions applies (i.e., fallback provision)
2
Q
Defenses that cannot be waived
A
Lack of subject matter jx
3
Q
Defenses that are Waived if not asserted in pre-answer motion or answer (whichever occurs first)
A
Lack of personal jurisdiction
Improper venue
Insufficient process or service of process
4
Q
Defenses that are Waived if not asserted before end of trial
A
Failure to state claim
Failure to join required party
5
Q
Defenses that are waived if not asserted in answer or amended answer
A
all legal defenses (other than the exceptions e.g. SMJx never waived, failure to state a claim / join required party waived if not asserted before end of trial)
6
Q
An answer must include
A
(1) admissions and denials, (2) motions that have not been waived, (3) affirmative defenses, and (4) compulsory counterclaims.
Otherwise, these items will be waived.
7
Q
when a dispute involves multiple claims and only some fall within the court’s original subject-matter jurisdiction (as seen here), the court may exercise supplemental jurisdiction over the other claims…. when that claim is based solely on diversity jurisdiction, supplemental jurisdiction is NOT permitted if a supplemental claim:
A
- would destroy diversity
or - seeks $75,000 or less and is made by a plaintiff (1) against parties added through joinder, intervention, or impleader or (2) seeking to join through compulsory joinder or intervention—neither of which is seen here.
8
Q
diversity jx - aggregation of claims allowed for amount-in-controversy when
A
a single plaintiff may aggregate (i.e., combine) joined claims asserted against a single defendant.
(there may be others)
9
Q
Discovery responses generally due
A
within 30 days of service
(interrogatories, request for production, requests for admission)
10
Q
judgment as a matter of law, district court must:
A
view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant
disregard any evidence favorable to the movant that the jury is not required to believe and
not consider the credibility of witnesses or evaluate the weight of evidence.
11
Q
judgment as a matter of law
A
A motion for JMOL is a request that the court enter a judgment in favor of the movant because the evidence is legally insufficient for a reasonable jury to find in the nonmovant’s favor.
12
Q
jury verdict must be
A
unless the parties stipulate otherwise, the verdict must be unanimous and returned by at least 6 jurors (no more than 12).
13
Q
offensive non-mutual collateral estoppel not allowed if:
A
plaintiff could have easily joined first action
defendant had little incentive to vigorously defend in first action
second action affords procedural opportunities unavailable in first action
or
inconsistent findings on issue exist
14
Q
Federal courts cannot exercise diversity jurisdiction over cases involving:
A
probate matters (eg, authenticating wills, administering estates)
or
domestic relations (eg, issuing divorce, alimony, or child-custody decrees)
15
Q
bulge rule
A
fed cts can acquire PJx over a part who is:
added to the suit through impleader (i.e., third-party practice) OR required joinder
AND
served with process within 100 miles of the federal court where the suit is pending—even if the party is served in another state.
16
Q
Special rules for where venue is proper
A
Removal (fed dist where state action was pending)
Foreign resident (any dist)
Fed official sued in official capacity (where any D resides, where substantial events occurred or property located, OR where P resides if no real property involved in suit)
Foreign gov (where substantial events occurred or property is located; in fed dist ct of D.C.)
Multiparty, multiforum litigation (where D resides, where substantial part of accident occurred)
FTCA (where P resides; where act/omission occurred)
17
Q
venue statute - venue proper in judicial dist where
A
any defendant resides—but only if all defendants reside in the same state
a substantial portion of the events occurred or a substantial part of the property at issue is located
or
any defendant is subject to the court’s personal jurisdiction—but only if venue cannot be established under the above provisions.
18
Q
Jury polling
A
Unless the parties stipulate otherwise, a verdict must be unanimous and returned by at least six jurors. To determine whether a verdict is unanimous, the court may poll the jurors individually after a verdict is returned but before the jury is discharged.
must be done upon a party’s request, or the court may do so on its own initiative (i.e., sua sponte).
19
Q
Effect of jury polling
A
If the poll reveals that the verdict is NOT unanimous, the court can either order a new trial OR direct the jury to deliberate further
20
Q
Types of jury verdicts
A
General verdict
- Jury finds in favor of, and awards any damages to, particular party
- No statement on jury’s findings of fact
General verdict with answers
- Jury finds in favor of, and awards any damages to, particular party
- Jury answers questions on specified factual issues
Special verdict
- Jury answers questions on specified factual issues
- Judge applies law to jury’s answers & enters appropriate judgment
21
Q
when can a jury verdict be recanted?
A
Any verdict, including a special verdict, can be recanted by a juror prior to the jury being discharged—even when the verdict has been announced in open court.
22
Q
the movant can file a renewed motion for JMOL _____ days after _____
A
no later than 28 days after the entry of judgment to seek to overturn an adverse verdict
23
Q
Citizenship for diversity jurisdiction
A
Person: Citizen of state where domiciled—ie, physically present with intent to remain indefinitely
Corporation: Citizen of every state where it (1) has been incorporated and/or (2) has its principal place of business
Unincorporated association: Citizen of every state where its members are domiciled
24
Q
When a claim arises under federal-question jurisdiction, federal courts must apply
A
federal law, including federal common law, to procedural and substantive issues.
25
Examples of procedural & substantive issues under Erie doctrine
Procedural
- Filing deadlines
- Court rules & procedures
- Discovery practices
- Rules of evidence
- whether amended pleading relates back to avoid SoL
Substantive (legal rights & duties)
- Elements of claim or defense
- Burdens of proof
- Statutes of limitations
26
Preliminary injunction - must establish
movant is likely to succeed on merits (not just unclear)
movant is likely to suffer irreparable harm in absence of relief (injury can't be compensated by monetary damages)
balance of equities favors movant (i.e., the harm to the movant absent an injunction outweighs the harm an injunction would cause to the nonmovant(s))
and
injunction is in public's best interests (e.g. enforcement of contractual rights and obligations protects the freedom to contract; enforcing IP infringe rights protects IP rights.)
27
Order granting prelim injunction must:
state reasons for issuance
reasonably describe prohibited or commanded acts
and
state terms specifically
28
Preliminary injunction binds
Binds the following persons who receive actual notice of order:
parties
parties' officers, agents, employees & attorneys
and
anyone in active concert or participation with above-listed persons
29
what if nonmovant of preliminary injunction is enjoined wrongfully?
Movant must provide bond to pay costs & damages if nonmovant was wrongfully enjoined.
30
Discovery devices - limit and due date
Interrogatories (party)
- up to 25
- within 30 days of service
Request for production (party or subpoena on nonparty)
- no limit
- within 30 days of service
31
Fed Q Jx - supplemental jx requires
claim shares common nucleus of operative facts as claim with court's original jx
32
If a claim has common nucleus of operative facts as claim within court's original jx and the original claim is based solely on diversity jx, there is no SMJx for the supplemental claim IF:
Permissive joinder by P would destroy complete diversity
OR
Supp claim is made by existing plaintiffs
- against joined, intervening, or impleaded parties OR
- seeking compulsory joinder or intervention
33
If a claim has common nucleus of operative facts as claim within court's original jx and the original claim is not based solely on diversity jx, there is no SMJx for the supplemental claim IF:
Courts may decline supplemental jx if:
- claim raises novel/complex issue of state law
- claim predominates over original claims
- original claims have been dismissed or
- other compelling reason
34
Jury trial demand timeline
Under Federal Rule of Civil Procedure 38, a party may demand a jury trial on any triable issue—i.e., any legal claim where the amount in controversy exceeds $20—by:
serving the other parties with a written jury trial demand no later than 14 calendar days after the last pleading directed to that issue is served (here, the funeral home's answer
and
filing the jury trial demand with the court within a reasonable time after service of the demand.
35
lawsuit begins
when P files complaint with court
36
timeline of deadlines from start of lawsuit to jury trial demand
P files complaint w court (suit begins)
90 days to serve D
21 days for D to answer
14 days for jury trial demand after last pleading directed to that issue is served
37
const requirements for notice
due process requires that service reasonably apprise the defendant of the pending suit so that the defendant may appear and present objections.
This means that the plaintiff must notify the defendant of the lawsuit by the most reasonable means under the circumstances.
If the defendant's identity and address are known or obtainable through reasonable efforts, then notice through personal service or some other means likely to notify the defendant is required.
38
Any absent defendant who does not personally receive notice may file a motion to set aside the judgment at any time within ___ of ____.
one year of the final judgment.
39
Court's leave* or parties' stipulation required to conduct deposition when:
deposition exceeds 10-deposition limit
deposition sought before parties' initial planning conference**
or
deponent already deposed in action
*Leave of court is always required when deponent is in prison.
***Leave of court or the parties' stipulation is not required for an oral deposition conducted before the initial planning conference if the deposing party certifies (and provides supporting facts) in the deposition notice that the deponent is expected to leave the U.S and be unavailable for examination.
40
a party may take the deposition of a witness when?
any time after the discovery conference
41
Final judgment rule
The final-judgment rule bars federal appellate courts from hearing an appeal until the federal district court has entered a final judgment.
A final judgment is a judicial decision that fully resolves the dispute on the merits and leaves nothing for the court to do but enforce the judgment.
(If multiple claims/parties, final judgment as to fewer than all claims/parties appropriate if court *expressly determines no justifiable reason for delay*)
42
is a granted motion for new trial a final judgment?
No - the jury's verdict will be set aside and the merits of the plaintiff's claim will be decided in a new trial.
43
immediate appeal of certain orders (under interlocutory appeals statute)
[prelim] Injunction (grant/denial/mod)
Certification by dist ct
- (1) there is a substantial difference of opinion on the controlling question of law AND (2) an appeal will materially advance the ultimate termination of litigation.
Class action cert (grant or deny)
Appointment of receiver
Admiralty cases
Collateral-order doctrine
Bankruptcy cases (certain orders)
Mandamus (petition for writ)
Patent infringement order (accounting left)
Mnemonic: In Certain Circumstances, An Appeal Can Be Made Prematurely
44
Certification by dist ct exception to final judgment rule
if a district court certi es in writing (i) that an order involves a controlling question of law as to which there is substantial ground for di fference of opinion, and (ii) that an immediate appeal from the order may materially advance the ultimate termination of the litigation, then a court of appeals has discretion to permit an appeal to be taken from such order.
(app must be made within 10 days after the entry of the order rather than 30 days like others)
45
deadline that applies to an appeal of other interlocutory orders that are immediately appealable as of right
30 days
46
collateral-order doctrine
a court of appeals has discretion to hear and rule on a district court order if it: “1) conclusively determines the disputed question, 2) resolves an important issue that is completely separate from the merits of the action, and 3) is e ffectively unreviewable on appeal from a final judgment.”
e.g. an order imposing on the defendant 90 percent of the cost of notifying members of a class was appealable under this doctrine
47
Mandamus Review
Under a writ of mandamus, an appellate court can immediately review an order of a lower court that is an abuse of judicial authority. In addition to establishing the existence of an error of law, the petitioner must establish that there is no other adequate means of obtaining the desired relief and that the right to such relief is clear and indisputable.
e.g. trial ct denied right to jury trial on legal issue
48
counterclaim is compulsory and must be asserted in the defendant's answer if it
arises from the same transaction or occurrence as the plaintiff's claim(s)
and
does not require adding parties over whom the court cannot acquire jurisdiction.
49
when _____, any counterclaims that would have been compulsory in an answer are not waived.
an action is dismissed before a defendant's answer is filed
50
Subject-matter jurisdiction in class actions - Diversity Jx requirements
Amount in controversy for any named plaintiff's claim exceeds $75,000*
and
named opposing parties are citizens of different states
*A federal court can acquire subject-matter jurisdiction over class members' claims that do not exceed $75,000 through supplemental jurisdiction.
51
Class Action Fairness Act requirements for SMJ
Class contains ≥ 100 members
at least one class member & one defendant are diverse
AND
amount in controversy for aggregated claims exceeds $5 million
52
CAFA does not apply
when the primary defendants are states, state officials, or other government entities against whom the district court may be foreclosed from ordering relief.
Nor does it apply to certain securities-related cases or litigation concerning the internal affairs or governance of a corporation.
53
a response to the amended pleading (e.g., answer) generally must be made by
the later of the following deadlines:
- The time remaining to respond to the original pleading—e.g., an answer is generally due within 21 days after service of process
- 14 days after the service of the amended pleading
However, the court may shorten or extend these deadlines, and the response must be made according to the court-ordered deadline.
54
To challenge a jury instruction on appeal, a party must preserve the issue at trial by
timely objecting to the instruction on the record*
and
stating the grounds for the objection
* Otherwise, the instruction will only be reviewed on appeal if it constitutes a plain error—i.e., an obvious error that affected a party's substantial right and the fairness of judicial proceedings.
55
An objection to jury instruction is timely if
it is made promptly after learning that a jury instruction has been or will be given OR that a request has been refused.
in other words:
- filing a request and there being a ruling on that
- when judge shares proposed instructions with counsel
56
Subpoena ad testificandum
Written order compelling person to appear at trial or grand jury proceeding
57
Subpoena duces tecum
Written order compelling person to produce documents/evidence at trial or grand jury proceeding
58
Request for production def
request served on party, or subpoena served on nonparty, to produce & allow inspection of documents, electronic information, tangible items, or land
59
A district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record. How correct it?
Before appeal docketed: on court's own initiative or by motion
After appeal docketed: with appellate court's leave
60
Relief from final judgment - grounds for relief
Motion must be made within one year from entry of judgment
- Mistake, inadvertence, surprise, excusable neglect by nonmovant or the court
- Newly discovered evidence (that could not have been discovered with reasonable diligence in time to move for a new trial, 28 days)
- Fraud, misrepresentation, misconduct by nonmovant
Motion must be made within reasonable time
- Void judgment (eg lack of jx)
- Judgment (satisfied, released discharged; based on reversed or vacated judgment; OR will violate equity if applied prospectively*)
- other (rare)
* Agostini: SCOTUS held violates equity to prospectively apply a judgment based on facts or law that have significantly changed since the court issued it.
61
A dismissal with prejudice due to settlement [does or does not] constitute a final judgment on the merits that prohibits the plaintiff from suing the defendant on the same claim in the future?
does
62
Claim preclusion
prohibits identical parties from relitigating a claim after any court enters a valid final judgment on the merits on an identical claim.
Claims are identical if they (1) arise from the same transaction, occurrence, or series thereof and (2) could have been raised in the first action.
63
An admission or a failure to deny an allegation in an answer generally results in
the allegation being admitted and conclusively established.
EXCEPT: allegations related to the amount of damages sought by the plaintiff. The failure to deny these allegations in an answer does not deem them admitted and conclusively established.
64
Waiver of defenses
Never waived: lack of SMJx
Waived if not asserted at first opp (in pre-answer motion or answer):
- PJ
- Improper venue
- Insufficient process / service of process
Waived if not asserted in answer or amended answer
- all other legal defenses
Waived if not asserted before end of trial
- Failure to state a claim
- Failure to join required party
65
Under Erie, state law applies if
(1) it is outcome determinative—i.e., forum-shopping or inequitable administration of the laws would result if it is not applied—and (2) there is no countervailing federal policy interest.
66
Fed ct sitting in diversity. If unclear substantive or procedural and fed law directly addresses the issue, federal law applies if
valid fed law
- is arguably procedural and
- it does not modify a substantive right
(otherwise state law applies)
67
When use Erie?
Fed ct sitting in diversity, unclear if issue is substantive of procedural, and fed law doesn't directly address the issue
68
Posttrial relief
Attorneys fees
JMOL
New trial
Alter/amend judgment
Correction of mistake
Extraordinary relief
69
Physical & mental examinations - what required to compel?
Party's mental or physical condition is in controversy
Motion for court order based on good cause
Court order issued where suit is pending provides notice specifying time, place, manner, conditions, scope & person performing exam
70
Under FRCP 15, an answer can be amended once as a matter of course (no ct permission req) - deadline
within 21 days:
- after serving the answer, if no responsive pleading (e.g., reply) is required
or
- if a responsive pleading is required, after being served with a responsive pleading or motion under FRCP 12(b), (e), or (f)—whichever occurs first.
71
Lack of personal jurisdiction is a defense that must be raised
(1) in a pre-answer motion or (2) if no pre-answer motion is made, in the original answer or an answer amended as a matter of course (i.e., without the court's permission).
Otherwise, this defense is waived
72
A federal district court may order the attorneys and any unrepresented parties to attend one or more pretrial conferences to encourage effective case management, facilitate settlement (as seen here), and expedite litigation. To promote those goals, a district court may impose sanctions that are _______ on any ______ who _________
a district court may impose sanctions that are reasonable under the circumstances—i.e., the punishment must fit the violation—on any party or attorney who:
failed to attend a pretrial conference
did not participate in good faith, or was substantially unprepared to participate, in the conference
or
failed to obey a pretrial order.
73
Sanctions for noncompliance with pretrial conference or order
Must be reasonable!
Required sanction:
the court must order a noncompliant party and/or attorney to pay the other party's reasonable expenses, including attorney's fees, unless (1) the noncompliance was substantially justified or (2) the payment would be unjust.
Permissible sanctions:
- Dismiss action in whole or in part
- Strike pleadings in whole or in part
- Hold in contempt of corut
- Issue default judgment
- Prohibit use of evidence
- Stay further proceedings
74
When can parties seek JMOL
This motion may be filed *before the case is submitted to the jury* but only after the nonmovant has had the opportunity to present evidence to establish that claim or defense. (this does not mean waiting until rebuttal / surrebuttal / closing arguments)
That means that
- D may move for JMOL after P presents its case
-a plaintiff may move for JMOL after the defendant presents its case.
75
JMOL
A motion for judgment as a matter of law (JMOL) is a request that the court issue a judgment on any *claim or defense* in the movant's favor because the evidence is legally insufficient for a reasonable jury to find in the nonmovant's favor
76
Under Federal Rule of Civil Procedure (FRCP) 41, a suit can be dismissed in two ways:
Voluntary dismissal – when the plaintiff moves to dismiss the suit
Involuntary dismissal – when the defendant moves to dismiss the suit
77
is an involuntary dismissal dismissed with prejudice?
yes - An involuntary dismissal under FRCP 41 operates as an adjudication on the merits unless the court orders otherwise.
This means that the plaintiff's action is dismissed with prejudice, which precludes the plaintiff from suing the defendant on the same claim in the future (UNLESS court order states otherwise or dismissal is based on lack of jx, improper venue, or failure to join req party)
78
A defendant can move for an involuntary dismissal if
if the plaintiff failed to prosecute the case or comply with a rule or court order.
79
P may dismiss suit without ct order when:
notice of dismissal filed before ∆ serves answer or summary judgment motion
or
all parties sign stipulation of dismissal
80
voluntary dismissal is ____ prejudice unless ____
Dismissal without prejudice unless:
π previously dismissed federal or state action based on same claim
or
notice or stipulation states otherwise
81
Challenges to potential jurors: number allowed and basis for DQ
Peremptory:
- 3 per party*
- Any basis other than race, ethnicity, or gender
- No explanation needed
*When a civil action involves multiple plaintiffs or defendants, the court may grant each side (1) three peremptory challenges or (2) more than three peremptory challenges that each side's parties exercise separately or jointly.
For Cause
- Unlimited
- For bias or lack of impartiality - e.g. relationship with party / party's counsel, financial stake in party
82
P needs to respond to defendant's answer by ____ if ____
A plaintiff need only respond to the defendant's answer by filing a reply in the rare instance that the court orders the plaintiff to do so.
83
If the court orders a reply, the plaintiff may be ordered to
respond to any allegation in the answer—including an affirmative defense (e.g., novation). Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff.
84
what happens if P doesn't reply to allegations in D's answer?
when a reply is not required, then the plaintiff is deemed to deny any allegation in the defendant's answer
85
JMOL - what movant must do and what court must do
Movant must:
specify judgment sought & law/facts entitling movant to judgment
Court must:
- view evidence & draw all reasonable inferences in nonmovant's favor
- disregard evidence favorable to movant that jury is not required to believe
- not consider credibility of witnesses or evaluate weight of evidence
86
Standard for granting JMOL
Evidence is legally insufficient for reasonable jury to find in nonmovant's favor
86
if the court issued an order that granted the third-party defendant's motion to dismiss the third-party complaint for failure to state a claim upon which relief could be granted and dismissed without prejudice and without leave of the court to amend it, is that a final judgment? and is it immediately appealable?
Yes - This dismissal would be considered a final judgment because the third-party complaint was dismissed without prejudice and without leave (i.e., permission) of the court to amend it
No - However, the judgment did not include an express determination that there was no just reason for delay in entering the judgment. Therefore, the court's order is not immediately appealable.
87
dismissal with prejudice _____ constitutes a final judgment.
always
88
dismissal without prejudice - final judgment?
If the defect in the third-party complaint could have been cured (e.g., by amending it), then a judgment dismissing that complaint without prejudice would not have been final.
(might not be complete answer)
89
Impleaded third party, the plaintiff may assert his/her own third-party claim against the third-party defendant if that claim:
arises out of the same transaction or occurrence that is the subject matter of the plaintiff's claim against the defendant in the original complaint
and
satisfies original subject-matter jurisdiction on its own.
90
Under FRCP 4, a plaintiff can properly serve a defendant who is an individual located in the United States by:
following the rules of the state where the court sits OR where service is made
having process delivered to the defendant personally (or to an agent authorized to receive process)
or
having process delivered to the defendant's dwelling and left with a resident of suitable age and discretion—i.e., old enough to possess the limited capacity necessary to comprehend the situation.
91
92
92
the interlocutory appeals statute (28 U.S.C. § 1292) allows certain equitable orders to be immediately appealed as a matter of right. These include:
orders granting, modifying, refusing, or dissolving injunctions
orders appointing or refusing to appoint receivers and
decrees determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.
93
A defendant who voluntarily appears in court for the express purpose of challenging personal jurisdiction makes a "______ appearance." is it required?
special appearance
no - Federal courts no longer require a defendant to make a "special appearance" to object to personal jurisdiction, which can be done in a pre-answer motion or answer.
94
can you waive proper service?
yes - e.g. making voluntary general appearance in court
95
- fed ct sitting in diversity
- unclear whether issue is substantive or procedural
- the court must determine .
if there is a conflict between state and federal law with respect to the issue
If no conflict exists, then the court can harmoniously apply state and federal law to the issue
If there is a conflict: valid fed law must be arguably procedural and not modify a substantive right to apply federal law
96
Compulsory joinder
Person must be joined in lawsuit—provided subject matter jurisdiction is preserved—if absence will:
prevent court from granting complete relief to existing parties
prejudice absent person's interest
or
subject existing party to multiple or inconsistent obligations
97
Permissive joinder
Person may be joined in lawsuit if:
claims by or against person arise out of same transaction/occurrence (OR SERIES of transactions or occurrences e.g. pattern of discrimination by different people in an org)
and
common question of fact or law will arise
98
Is a defense considered procedural or substantive for choice of law in diversity cases?
Although the elements of a defense are substantive, the the availability of a defense is arguably procedural.
99
Choice of law in diversity cases steps
1. Issue substantive / procedural / unclear
2. If unclear, does fed law directly address issue
- if yes: fed rule analysis (arguably procedural and doens't modify substantive right)
- if no, Erie: state law is outcome determinative and no countervailing federal policy interest, then State law applies
100
State law is outcome determinative if
the failure to apply state law would result in either:
forum-shopping – litigants will be encouraged to sue in federal court to take advantage of benefits not afforded in state court
or
inequitable administration of the laws – the application of substantially different rules in federal and state court would cause unfair outcomes.
101
A court's limitations on discovery
Permissive (ct may alter limits upon)
- number of depositions, interrogatories, or requests for admission and
- length of oral depositions
Required (ct MUST limit discovery )
- is unreasonably cumulative or duplicative
- is obtainable from more convenient, less burdensome, or less expensive source
- contains information that party had ample opportunity to obtain or
- is outside scope of discovery
102
Information is within the scope of discovery if
it is relevant to any party's claim or defense, not privileged, and proportional to the needs of the case. (Therefore, a federal court must limit the frequency or extent of discovery when the information sought is disproportional to the needs of the case.)
103
Factors speaking to information sought in discovery being disproportional to the needs of the case:
the importance of the issues at stake
the amount in controversy
the parties' relative access to relevant information
the parties' resources
the importance of the discovery in resolving the issues
whether the burden or expense of the proposed discovery outweighs its likely benefit
104
requirements for requesting electronically stored information
[not sure if complete[
P files motion to compel production
D shows ESI is not reasonably accessible due to undue burden or cost
P must show good cause for request of ESI
105
is it possible for FRCP to not be a valid fed law?
No FRCP has ever been found unconstitutional or invalid. This is likely because the Supreme Court reviews and sends proposed rules to Congress before they are enacted.
106
Uniquely federal interests
Contractual rights & obligations of federal government
Civil liability of federal officials for actions in course of duty
Civil liability of manufacturers of military equipment
Fiduciary duty of Federal Reserve Bank during economic crisis
107
A federal court will determine whether there is a federal interest at stake that requires the application of _____, not _______ —but only when no federal law directly addresses the issue before the court
federal common law (not a federal rule)
108
Exceptions to rule against nonparty issue preclusion
Issue preclusion may be asserted against nonparty who:
agreed to be bound by judgment
had substantial legal relationship with party (eg, bailor–bailee)
was adequately represented by party with same interests (eg, class action)
assumed control over case (eg, insurer–insured)
attempts to relitigate through proxy
or
was sued under special statutes that bar relitigation & satisfy due process
109
Each juror must participate in the verdict unless _____ by the court for _____ during trial or after jury deliberations have begun.
excused (i.e., dismissed) by the court for good cause during trial or after jury deliberations have begun.
Good cause exists when the juror has an illness, has a family emergency, or has committed juror misconduct that might cause a mistrial—e.g., providing false testimony during voir dire.
110
Good cause for a juror being excused by court during trial or after deliberations have begun
Good cause exists when the juror has an illness, has a family emergency, or has committed juror misconduct that might cause a mistrial—e.g., providing false testimony during voir dire.
111
A judge [must / need not] consult with the parties or seek their approval before excusing a juror for good cause.
need not
112
Representations to court
(FRCP 11(b))
Every pleading, motion, or other document filed must be signed by attorney (or unrepresented party), thereby certifying that:
1. document is presented for proper purpose—not to harass, cause unnecessary delay, or needlessly increase cost of litigation
2. claims, defenses & legal contentions are warranted by existing law or by nonfrivolous argument for revising or establishing law
3. factual assertions have or will have evidentiary support
and
4. factual denials are warranted by evidence or reasonably based on belief/lack of information
113
A court can impose sanctions, including an order to pay the opposing party's attorney's fees, on a law firm (default), attorney, or party for violating one of the provisions of FRCP 11(b).
Sanction proceedings can be initiated in two ways:
by a party's motion – which requires the party to serve the motion on the alleged violator but refrain from filing it for 21 days after serving it to allow any violation to be corrected (i.e., safe-harbor rule) or
on the court's own initiative (i.e., sua sponte) – which requires the judge to issue an order to show cause to the alleged violation (aka show-cause order)
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A law firm [is / is not[ held jointly responsible for any FRCP 11(b) violation that is committed by its partner, associate, or employee unless exceptional circumstances exist
Is
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Common FRCP 11 sanctions
Monetary*
- Order fine payable to court
- Order payment of opposing party's attorney's fees & other expenses
*$ can't be imposed on represented party for violation of FRCP 11(b)(2) - "the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending... law"
Nonmonetary
- Strike pleading, motion, or other document
- Admonish, reprimand, or censure offending party, attorney, or law firm
- Require participation in training/seminar
- Refer issue to disciplinary authorities (eg, state legal ethics committee)
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may an attorney may rely upon factual contentions put forth by the client in a pleading without violating Rule 11?
An attorney may rely upon factual contentions put forth by the client in a pleading without violating Rule 11—*provided* that the attorney has made a reasonable inquiry into those contentions
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The verdict must be unanimous and returned by _____
at least 6 jurors (no more than 12)—unless the parties stipulate otherwise
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Relation-back doctrine. No amendment after statute of limitations expired unless:
Asserts new claim
- statute of lim allows relation back
OR
- New claim arises form same transaction or occurrence as original pleading
Changes party
- statute of lim allows relation back
OR
- Concerns same transaction or occurrence as original pleading AND (new party receives notice of suit within 90 days of original filing AND new party knew or should have known he would be sued)
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If the appellate court permit appeal for class cert, the district court proceedings are ______
stayed pending the appeal only when ordered by the district court or the appellate court
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(preclusion) Factors considered in determining what constitutes the same transaction or series include:
whether the facts are related in time, space, origin, or motivation
whether the facts form a convenient trial unit and
whether treating the facts as a unit conforms to the parties' expectations.
(example not precluded - Here, the facts may have formed a convenient trial unit since both notes were given for a single sale of goods (Choice A). However, the buyer gave the seller two separate notes because the buyer knew that the seller intended to sell one of the notes. Had that actually occurred, the purchaser of the note could then have enforced it independent of the other note.)
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The doctrine of claim preclusion (i.e., res judicata) provides that a valid final judgment on the merits precludes identical parties from relitigating identical claims. Claims are identical if they
(1) arise from the same transaction, occurrence, or series thereof and (2) could have been raised in the first action because the claim existed and could have been joined.
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In a federal action, FRCP 4 permits service of process on a defendant-individual located in the U.S. by any of the following methods:
personal service – when process is delivered in person to the defendant
substituted service – when process is delivered to the defendant's agent or left at the defendant's dwelling with a resident of suitable age and discretion
state procedural rules – when process is served pursuant to the rules of the state where (i) the court sits or (ii) service is attempted (as seen here)
-----
NOTE attempted service must also satisfy due process.
Under this constitutional requirement, service must be reasonably calculated to apprise interested parties of the pending suit so that they may appear and present objections. This is typically the most reasonable means under the circumstances.
Service by publication is the most reasonable means in the rare instance when the defendant's identity or address is unknown and unobtainable.
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A plaintiff may voluntarily dismiss a suit without a court order. This can be done by
filing (1) a notice of dismissal before the opposing party serves an answer or a summary-judgment motion or (2) a stipulation of dismissal signed by all parties.
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a voluntary dismissal is with prejudice when
specified in a court order, notice, or stipulation OR the two-dismissal rule applies. This rule applies when:
the plaintiff's first action was voluntarily dismissed without a court order in state or federal court
and
the plaintiff brought a second action on the same claim in federal court and filed a notice of voluntary dismissal
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Types of class actions (on bar)
[like a (b)(1)] Prejudicial risk – when separate actions would create a risk of inconsistent decisions regarding the parties or impairing absent class members' interests
[like a (b)(3)] Common question – when common questions of law or fact predominate over individual questions and a class action is the best method to fairly and efficiently adjudicate the dispute
[like a (b)(2)]
Final equitable relief – when injunctive or declaratory relief is appropriate because the opposing party's actions generally apply to the whole class
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Abstention in federal courts - types
Pullman
Burford
Colorado River
Younger
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abstention
a federal court with subject-matter jurisdiction may abstain from hearing a case or stay the matter pending adjudication of the similar state court action when an abstention doctrine applies
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When does Pullman abstention appy?
Resolution of unsettled state law in state court would moot federal constitutional issue
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When does Buford abstention apply?
Injunction or declaratory judgment would interfere with complex state regulatory scheme that serves important state policy & provides timely & adequate judicial review
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When does Colorado River abstention apply?
Pending state proceeding involving substantially same parties & issues presents exceptional circumstances that justify conserving judicial resources
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when does Younger abstention apply
Injunction or declaratory judgment would interfere with pending state proceeding that involves important state interest & provides adequate opportunity to litigate federal claims
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A violation of one of the provisions of FRCP 11(b) (representations to court) can subject a law firm, attorney, or party to sanctions.
Sanction proceedings can be initiated by ______.
When sanction proceedings are initiated by a party's motion, ________ rule requires the party serving the motion to ________
the court sua sponte or by a party's motion
the safe-harbor rule
refrain from filing it for 21 days after serving it to allow any violation to be corrected (e.g., by dismissing a claim).
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There are three types of verdicts—general verdicts, special verdicts, and general verdicts with special interrogatories—and the judge has the discretion to choose which verdict to use.
If the judge selects a general verdict with special interrogatories and the jury's answers are inconsistent with the verdict, the judge must:
order a new trial
direct the jury to further consider its answers and verdict
or
disregard the jury's verdict and enter a judgment consistent with the answers provided.
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General verdict with answers - what happens with consistency and inconsistencies:
Answers consistent with verdict
--Judge must enter judgment consistent with verdict & answers
Answers inconsistent with verdict
--Judge must
(a) order new trial; (b) direct jury to further consider its answers & verdict;
OR
(c) disregard verdict & enter judgment consistent with answers
Answers inconsistent with each other & verdict
--Judge must
(a) order new trial; OR (b) direct jury to further consider its answers & verdict
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FRCP 42 allows a federal court to order separate trials of claims for
convenience, to avoid prejudice, or to expedite and economize.
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However, when a claim falls outside a court's original jurisdiction, the court may exercise supplemental jurisdiction if the supplemental claim and the original claim share a common nucleus of operative facts (as seen here). But when the original claim is based on diversity jurisdiction, supplemental jurisdiction is barred if the supplemental claim:
is made by (1) existing plaintiffs against parties added through joinder, intervention, or impleader or (2) persons seeking to join as plaintiffs through compulsory joinder or intervention
AND
would violate the requirements of diversity jurisdiction (e.g., contaminate diversity of citizenship).
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Diversity jurisdiction ____ be invoked by or against stateless persons.
Examples of stateless persons:
cannot
i.e., noncitizens present in the U.S. but not citizens of a foreign country OR U.S. citizens domiciled in a foreign country
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Jury instruction requests - rules for parties
must file request by close of evidence unless earlier, reasonable deadline set by court
may file request after close of evidence when:
(1) request relates to issue that party could not have reasonably anticipated by deadline; or (2)
court permits late submission related to any issue
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Jury instructions - rules for the Court
must inform parties of proposed instructions before instructing jury & closing arguments
must allow parties to object on record & outside jury's presence before instructing jury & closing arguments
may consider objection made after court instructs jury if instruction constituted plain error
may instruct jury at any time before discharge
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How to object to jury instructions
Party:
must distinctly state objection & its grounds on record
must object at court-appointed time or promptly after learning of proposed instruction
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Proper venue for suit against federal officer or employee
If official capacity: special venue rules permit suit in district where:
- Where any D resides
- substantial portion of events occurred or property located
- π resides if no real property involved
If individual capacity: general venue statute permits suit where
- any Δ resides, if all Δs reside in same state
- substantial portion of events occurred or property located
- any Δ subject to personal jurisdiction if neither of above applies
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Each party in a civil action is entitled—but not required—to use up to three peremptory challenges to disqualify a potential juror for any reason. But when a civil action involves multiple plaintiffs or defendants, what does court do about peremptory challenges?
consider the parties on one side of the litigation as a single party that is limited to three peremptory challenges
or
grant more than three peremptory challenges and permit them to be exercised separately or jointly by the parties
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a district court with proper venue can transfer venue for ________ to _________.
Under 28 U.S.C. § 1404, a district court with proper venue can transfer venue for the convenience of parties and witnesses, and in the interest of justice,
to any judicial district (1) where the suit could have been originally brought or (2) to which all the parties have consented.
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forum non conveniens
Power of federal court to dismiss or stay a case—even when venue is proper in that court—if a state or foreign judicial system is better suited to hear the dispute.
NOT FOR TRANSFERS
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factors considered for forum non conveniens
Private interest factors
- Accessibility of evidence
- Availability of witnesses
- Burden on defendant
- Enforceability of judgment
Public interest factors
- Ability to comprehend substantive law
- Choice of law
- Interest of jury/community
- Functionality of foreign judicial system
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Categories for appellate standards of review... appeal concerns:
Legal issue (eg conclusions of law, jury instructions)
Fact Issue (eg credibility of witnesses, factual determinations/verdict)
Discretionary Ruling (eg injunctions, admissibility of evidence)
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De novo appellate standard of review means ___ deference and reversing if _________
NO deference
Reverse if reasonable belief judge misinterpreted law
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Abuse of discretion appellate standard of review means ___ deference and reversing if _________
High deference
Reverse if decision was unreasonable/arbitrary
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Appellate standard of review for fact issue
Bench trial = Clear error
- high deference
- reverse if NO reasonable judge would have made finding
Jury trial = Substantial Evidence*
- high deference
- reverse if NO reasonable jury would have made finding
*cts may also reverse if there is insufficient or no evidence. split of auth so concept not likely to be tested
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Abuse of Discretion appellate standard of review means ___ deference and reversing if _________
High
decision was unreasonable/arbitrary
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Required contents of preliminary injunction
State reasons issued
Reasonably describe acts restrained or required
Specify terms
(notice of hearing required)
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Required contents of preliminary injunction
What is req in prelim injunction
- State reasons issued
- Reasonably describe acts restrained or required
- Specify terms
AND
- date & hour issued
- why injury is irreparable
- why issued without notice
- promptly filed with clerk & entered into record
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Can a TRO be issued without a hearing or notice to the adverse party?
Yes but only if--
- the movant can establish under written oath (i.e., via affidavit or verified complaint) that he/she will suffer immediate and irreparable harm before the nonmovant can be heard and
AND
- the movant's attorney certifies in writing any efforts made to give notice and the reasons why notice should not be required.
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Statutory interpleader requirements
SMJ: Minimal diversity between claimants + Amount in controversy ≥$500
PJ: Nationwide service of process
Venue: any district where any claimant resides, even if claimants reside in different states
Deposit: Deposit property with court or post bond
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Requirements of rule interpleader are different from statutory in two ways:
For rule interpleader,
Requirements are normal rules for SMJx, PJx, and Venue.
Deposit not required
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Even does minimum contacts not apply for personal jx
when a federal court with personal jurisdiction over the defendant enters a judgment, that judgment is enforceable by a federal court in another state by seizure of the defendant's property located in that state.
This is true even if the defendant lacks minimum contacts with the state enforcing the judgment. (because the defendant should not be able to avoid payment by removing his/her assets to another jurisdiction.)
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when is notice required for class actions?
In "prejudicial risk" (b)(1) and "final equitable relief" (b)(2) class actions, a court may—but is not required to—provide notice to class members, who do not have a right to opt out and file separate suits.
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what is a prejudicial risk class action?
when separate actions would create a risk of inconsistent decisions regarding the parties or impairing absent class members' interests
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Required discovery disclosures (just types)
Initial disclosures
Expert testimony
Pretrial disclosures
(Auto disclose)
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Initial disclosures - Required disclosures and time to disclose
- Persons with relevant information
- Items in party's possession that support claim/defense
- Computation of damages & supporting material
- Relevant insurance policies
- ≤ 14 days after initial planning conference
- ≤ 30 days after post-conference service or joinder
- As court orders or parties stipulate
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Expert testimony - Required disclosures and time to disclose
- Identity of expert witnesses
- Expert's written report
- If no report, subject matter & summary of testimony
- ≥ 90 days before trial
- ≤ 30 days after disclosure to rebut evidence
- As court orders or parties stipulate
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Pretrial disclosures
- Testifying witnesses (name, #, address) - even maybes
- Deposition testimony to be used at trial - includes transcript of pertinent parts (that wasn't taken by shorthand)
- Documents/exhibits to be used at trial - even maybes
*Does not apply to evidence used solely for impeachment
- ≥ 30 days before trial
- As court orders
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Discovery of expert materials - what is discoverable?
Nontestifying expert: Facts known or opinions held by expert not discoverable UNLESS (a)
relate to court-ordered physical/mental examination; or (b)
exceptional circumstances make it impracticable to obtain information by other means
Testifying expert:
- Facts known & opinions held by expert discoverable through deposition
- Drafts of expert reports & disclosures NOT discoverable
- Communications between attorney & expert NOT discoverable UNLESS:
(a) relate to expert's compensation; or
(b) identify facts, data, or assumptions provided by attorney that expert considered in forming opinions
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Right to jury trial in civil case
Legal claim – seeks monetary remedy to compensate for loss (eg, tort/contract damages)
AND
> $20 in controversy
(No right:
Equitable claim – seeks nonmonetary remedy (eg, injunction, specific performance) since legal remedy is inadequate
OR
≤ $20 in controversy)
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a party may properly demand a jury trial by:
serving the other parties with a written jury demand within 14 days after the last pleading (usually the defendant's answer) is served
and
filing the demand with the court within a reasonable time after service of the demand.
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What is judgment on partial findings
in bench trials, a party can file a motion for a judgment on partial findings (in lieu of JMOL).
This motion requests the Ct enter a partial finding against the nonmovant AFTER the nonmovant has been fully heard on the issue. If that finding resolves a claim or defense, the court may enter a judgment on partial findings.
Court MUST provide factual findings and legal conclusions on the record in support of that judgment (can be orally or in writing).
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Applicability of substantive FCL
1. Implied Cause of Action (allows recovery of damages against federal officers for violation of 4A, 5A, 8A) - Bivens I think
2. Diversity actions (governs substantive issues when uniquely federal interest significantly conflicts with operation of state law)
3. Gap-filling (fills in federal statutory / regulatory scheme)
4. Statutory interpretation (interprets federal statutes, fed regs, or US Const)
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Types of actions for PJx
In rem: brought directly against property; determines all persons' interest in property (eg forfeiture, condemnation)
Quasi in rem: brought directly against person in reference to property
- Type 1: determines parties' interests in property (eg quiet title)*
- Type 2: Uses person's property to satisfy unrelated claim (eg attachment, garnishment)
In personam: brought directly against person
*almost always comports with due process bc min contacts exist since action relates to D's interest in the property in the forum state
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jury numbers rules
jury must begin with at least 6 and no more than 12 members.
Unless parties stipulate otherwise, verdict must be unanimous and returned by at least 6 jurors.
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Types of consent-based personal jurisdiction
Express: K (eg forum selection clause)
Implied: engaging in specific activity that state has substantial interest in regulating (eg driving on public road)
Waiver - untimely objection to PJx
Appearance - voluntarily appearing in court to litigate merits
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Service of Process on Defendant-Organization
In US: (a) follow state law where dist ct located or where service is made; or (b) deliver process to officer, managing/general/authorized agent AND mail to D if req by statute
Foreign country: (a) follow int'l agreement reasonably calculated to give notice; (b) if no int'l agreement & not prohibited by fed law - follow foreign country's rules, serve as foreign country directs in response to letter rogatory, or serve by mail w request for signed return receipt (unless foreign country prohibits); or (c) follow court order, unless prohibited by int'l agreement
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How get default judgment
A default generally occurs when a D fails to timely serve an answer to P's complaint (it can also occur when a P fails to timely answer a D's counterclaim within 21 days after it was served).
The court clerk may enter a default judgment only when: (i) the claim is for a sum certain - amount established by affidavit; (ii) defaulting party failed to appear (didn't file motion or otherwise act before ct*); AND (iii) the defaulting party is not legally incompetent or a minor
*if a party had appeared in the action and then failed to timely respond (to eg counterclaim), the court (not clerk) may enter a default judgment if the builder is served with written notice of the other party's app for default judgment at least 7 days before a hearing on the matter
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