MBE Civil Procedure Flashcards
Personal Jx – Personal Jurisdiction (Overview)
Personal Jx – Personal Jurisdiction (Overview)
Personal Jurisdiction involves the courts ability to exercise authority over parties or their property, binding them to the judgment of the court.
Jurisdiction must be STATUTORILY AUTHORIZED and CONSTITUTIONAL
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STATUTORILY AUTHORIZED–An applicable state law must authorize jurisdiction (Long Arm Statute)
- Presence @ time of service
- Domicile
- Consent to jurisdiction
- Long Arm Statute
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CONSTITUTIONAL-Jurisdiction must satisfy due process
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Minimum Contacts--D must have minimum contacts with the forum state
- Purposeful availment
- Foreseeability (could be hauled into court)
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Relatedness
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Specific Jx -
- Current cause of action ⇒ long arm statute.
- P’s claim must be related to D’s (purposeful) contact with forum state
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General Jx -
- All causes of action ⇒ domicile or “at home” or “principal place of business”
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Specific Jx -
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Fairness
- <em>Should not offend traditional notions of fair play and substantial justice</em>
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Minimum Contacts--D must have minimum contacts with the forum state
Personal Jx – In Personam Jurisdiction
In personam jx is jx over persons.
A court may render judgment (money or injunction) against an individual personally.
In personam jurisdiciton is based on a person’s contacts with the forum state
Personal Jx – In Rem Jurisdiction
In rem jx is jx over property or status, including ownership disputes.
The property must** be **physically located** in the **forum state.
Judgment is binding as to the disposition of property rights or status, not as to parties personally
This often involves estate issues, business proceedings, or property disputes
Personal Jx – Quasi In Rem Jurisdiction
Quasi in rem jx is jurisdiction where Property is Attached to the Person…
The property is attached for some reason not necessarily involving the property itself (e.g. action against D and his assists due to fears D will flee state).
The court may render judgment as to persons with respect to property
Personal Jx – STATE Statutory Limits on Personal Jurisdiction
State laws often determine when courts may exercise jx. Most state statutes grant in personam jx if either:
D is personally served in the forum state.
- Duration of D’s presence is irrelevant
D is domiciled in the forum state.
- Domicile means the D maintains permanent home in the forum state.
- Court can exercise jx over domiciled persons even if they are not physically present when served
(3) D consents to jx (can be express or implied)
(4) D’s acts fall within the state’s long-arm statute (LAS)
- * A general/unlimited LAS confers states’ courts with jx to the extent allowed by the Const. *
- A limited/enumerated LAS specifies when state courts can exercise jx
Personal Jx – Constitutional Limits on Personal Jurisdiction
To be subject to PJ, D must have
minimum contacts
with the forum state
that exercising jx does not offend traditional notions of fair play** and **substantial justice
Personal Jx – Minimum Contacts
D must have sufficient minimum contacts with the forum state the inquiry focuses on (1) purposeful availment and (2) foreseeability
Purposeful Availment–D must purposefully avail herself of the forum states’ laws and protections (e.g. using roads, doing business instate, etc.)
Foreseeability– D must know or reasonably anticipate she could be held accountable for her activities in the forum state
- Circumstances that give rise to sufficient contacts:
- (1) D is domiciled in the forum state
- (2) D is present in the forum state when served with process (but not tricked into coming into the forum)
_____________________
May (not certain) = Minimum Contacts
- Website (interactive, business oriented more likely to be min contact)
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Goods in Stream of Commerce -
- Reasonably Expect Consumers to Purchase Products in Form = Min Contacts
- Mere awareness that Component Parts could reach forum as Part of Another Product = NO Min Contacts
Personal Jx – Minimum Contacts – General Jurisdiction
Personal Jx – Minimum Contacts – Specific Jurisdiction
Personal Jx – Fair Play & Substantial Justice
Due process requires that, assuming D has minimum contacts with the forum state, exercise of jx must not offend traditional notions of<strong><em> <u>fair play & substantial justice</u>. </em></strong>
Factors (1) relatedness of contacts & claim, (2) convenience, (3) the state’s interest,
Relatedness of Contacts & Claim– Analyzes whether D’s contacts with the forum state gave rise to the claim.
- This can happen in one of two ways, either specific jx or general jx.
- * General jx claims do not arise from D’s contact with the forum state. Rather D must have systematic and continuous contacts with the forum state (e..g doing business, domiciled)
- *Specific jx claims arise from D’s in-state contacts
Convenience– Convenience analyzes whether jx in the forum would severely disadvantage D. The disadvantage to D must be so difficult that D is put at a severe disadvantage compared to P
State’s Interest - whether state has interest in providing redress for its residents or an interest in the outcome of case
Personal Jx – Notice Requirment
Due process requires that D must be sufficiently notified of a pending lawsuit. Notice must be reasonably calculated under the circumstances to apprise the interested parties of the pendency of the action and afford them an opportunity to be heard.
Traditional methods of notice such as personal delivery, registered mail, delivery to an appointed agent satisfy due process.
P need not deliver notice personally; can be given by a court-appointed agent or agent hired by P.
If P knows notice was not received by D (e.g. by mail), P cannot proceed if practical alternatives to giving notice exist
Service of Process: – Methods of Service of Process
A defendant may be served by:
Personal Service--Papers are given to D personally
Substituted Service–Process is left at D’s usual abode and serve someone of suitable age and discretion who resides there
Service on D’s Agent--Process can be delivered to D’s agent
OR
Any method permitted under state law where the federal court sits
Service of Process: – Service of Process
A defendant is entitled to notice that she has been sued.
Time: Service must be within 90 days of filing of the case. If not, the case is dismissed without prejudice, unless plaintiff shows good cause for delay.
Deliverer : Any nonparty who is over 18 years old can serve process.
Documents: Usually this consists of Together these two documents are called service of process.
- summons (formal court notice of the suit and time for response)
- and
- copy of the complaint.
Service of Process: – Waiver of Service of Process
Plaintiff may request that defendant waive service by mailing the complaint and two copies of a waiver form, with a prepaid means of returning the form.
If D DENIES REQUEST or DOESN’T RESPOND: plaintiff must serve through another acceptable method.
IF D AGREES TO WAIVE SRVCE: defendant extends her time to answer the complaint to 60 days from the date waiver request was sent (as opposed to 21 days).
- Waiving service does not waive the right to object to venue or jx
Service of Process: – Exceptions to Service of Process Requirements
D in state solely as a party or witness in another civil case, cannot be served
Subsequent papers filed with the court (e.g. answers, discovery requests) do not require formal service. They may be mailed or emailed (if party agrees).
- If mailed, recipient gets 3 extra days to respond
Subject Matter Jx – Subject Matter Jurisdiction (Overview)
Federal courts must have authority over the claim or controversy in question.
Federal courts are courts of limited jx, meaning they can only hear certain types of cases. Note: Unlike state courts which have general jx and can hear any kind of case
SMJ can NEVER be waived
SMJ can be raised at any time.
Subject Matter Jx – Diversity Jx
Federal courts have SMJ over controversies between
[citizens of different states] or [a citizen of a state and a citizen of a different country]
and the amount in controversy exceeds $75,000 ($75,000.01)
NOTE: Foreign Plaintiff and initiate suit against a Citizen Defendant
Subject Matter Jx – Diversity Jx: Complete Diversity
Diversity jx requires complete diversity between the parties meaning no plaintiff and no defendant reside in the same forum state.
Diversity is based on domicile at the commencement of the suit. A person may not relocate to defeat diversity.
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Citizen Domicile–A person’s domicile is determined by their
- physical residence and
- their intent to remain (work, votes, taxes, bank account, driver’s license)
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Corporations Domicile–A corporation has 2 domiciles:
- (1) their state of incorporation and
- (2) their principle place of business (PPB), where their corporate decisions are made, i.e. “never center” (usually corp. headquarters)
- Unincorporated Businesses (LLCs, LLPs, etc.)–Unincorporated businesses are citizens of all states which any partner or member is a citizen
Subject Matter Jx – Diversity Jx: Amount in Controversy
Plaintiff’s complaint must make a good faith allegation that the amount in controversy exceeds $75, 000, excluding interests and costs.
To dismiss for insufficient amount, there must be no legal possibility that recovery will exceed $75K .
The amount actually awarded is irrelevant.
Equitable Claims--Equitable relief such as an injunction can be added to the monetary claim to satisfy the AIC requirement.
- Courts look at the value of the harm caused. What is the value of the harm caused by D? OR
- How much would it cost for D to comply with the injunction or other equitable relief?
Aggregation of Claims–
- 1 P and 1 D - P can aggregate (add) all claims against a single D.
- Multiple Ps and 1 D - ONLY IF if P’s are seeking to enforce a single title or right in which they have a common, undivided interest
- * If there are multiple D’s claims cannot be aggregated
Subject Matter Jx – Supplemental Jx - DIVERSITY
Supplemental jx allows a federal court to hear additional claims that do not on their own meet diversity or FQ requirements. Federal courts have supplemental jx over all claims so related that they form the same claim or controversy.
Each additional claim must have a common nucleus of operative fact arising from the same transaction or occurrence.
A court may deny supplemental jx where:
- It raises novel or complex issues of state law
- The supplemental claim dominates the main claim
- Court dismisses the original claim;
NOTE:
- Diversity Cases: Supplemental JX Does NOT Overcome lack of Diversity
- Fed Question Cases: Supplemental Jx DOES Overcome lack of Diversity
- Amount in Controversy: Can use Supplemental Jx to overcome
Subject Matter Jx – Federal Question Jx AND Federal Q Supplemental Jx
Federal courts have jx over claims arising out of the U.S. Constitution or the laws and treaties of the United States.
Exclusive Federal Jx–Federal courts have exclusive jx over certain types of claims, which must be heard in federal court:
1) Bankruptcy
2) Patent and Copyright
3) Federal Antitrust Claims
4) Postal Matters
Subject Matter Jx – Removal Jx
Who may remove
Timeline for removal
Parties and limitations of removal
D can remove a _case originally filed in state cour_t to federal court _if the federal court would have SMJ._
ONLY DEFENDANT** may **REMOVE and they must remove *within 30 days of service* (not filing) of the first paper that shows the case is removable.
- If there are multiple D’s then all who have been served with process must join the removal.
- D must remove to federal district ct in jurisdiction where case was filed
Filing: In order to remove a case, D must file a “notice of removal” in federal court, stating grounds for removal, which means federal SMJ (diversity or FQ).
D makes copies of all documents served in the state action and serves the copy of “notice of removal” on adverse parties and then files a copy of the notice with the state court.
Subject Matter Jx – Removal Jx ——-> Removal Limitations in DIVERSITY CASES
Diversity Jx Limitations--If a D is removing a case based on diversity jx, they _may not remove_ the case if:
- P filed suit in any Ds home state (if later in state D’s case is dropped the case may become removable 30 days after dismissal, unless its been over a year)
OR
- 1 Year after CASE FILED in State court, unless the court finds that Plaintiff acted in bad faith
Subject Matter Jx – Removal Jx ——-> Removal Limitations in Federal Question Cases
Subject Matter Jx – Erie Doctrine and Federal Court Choice of Law – GENERALLY
In DIVERSITY cases, federal courts must apply state substantive law, but federal procedural law.
Subject Matter Jx – The Erie Doctrine Analysis
In DIVERSITY cases, federal courts must apply state substantive law, but federal procedural law.
ANALYSIS: Is there a valid federal law (e.g. Const., statute, federal rule) that is on point and directly conflicts with state law? *
- If YES —> apply the federal law as long as it’s valid
- If NO federal law is on point, use following tests to determine whether “substantive.”
- Outcome Determinative. Application of state/fed law influence outcome?
- Balance Interests. Balance interests of states vs feds in applying their laws. Does state have greater interest?
- Forum Shopping. Does it encourage forum shopping (litigants flock to fed ct to avoid state law - this is bad)?
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NOTE: Four issues that will always be “substantive”:
- a) Elements of a claim or defense
- b) State Statute of Limitations
- c) Rules for Tolling Statue of Limitations
- d) Conflict (or choice) of law rules **
Venue – Venue Overview
Venue involves the determination of FEDEREAL judicial district(s) in which a Plaintiff may bring suit.
Venue proper in CIVIL ACTIONS where:
- Any D resides
- Any D subject to PJ
- Claim Arose
- Property Situated
Venue - Scenarios - if Venue based on Diversity vs Federal Question
Venue – Venue - Residency for Venue Purposes (people, corps, aliens)
People - Domicile
Business - all districts subject to PJ when the action commenced this is must broader than principal place of business test
Unincorporated Association - location of the actual association itself not individual members
Aliens - Anywhere
Venue – Transfer of Venue
A federal district court may transfer a case to another federal district court if the the transferee district is one in which the case could have originally been filed (i.e. proper venue, PJ and SMJ).
Transfer is discretionary, the court may order transfer based on convenience of parties and witnesses, and /or the interests of justice.
- The court’s discretion is based on private and public factors showing that the transferee court is the center of gravity (i.e. where it should be).
- * Public factors include things like what law applies, what community should be burdened with jury service, etc.
- * Private factors include convenience (e.g. location of witnesses and evidence)
The transferee court applies choice of law rules of the original court, regardless of which party sought transfer.
- Exception: Transferee court will apply its own laws if original venue was improper
Venue -Dismissals and Forum Non Conveniens
If there is a far more appropriate court in which a case should be heard (e.g. separate judicial system, foreign country, etc.) the court in which the case was filed may decline to exercise its jx.
The court will either
- (1) stay the proceeding or
- (2) dismiss the case.
The decision is based on the same public and private factors as for transfer of venue (i.e. convenience, applicable law, etc.)
Pleadings and Motions – Complaint
The complaint must contain
- a short and plain statement of grounds of subject matter jx,
- a short and plain statement of the claim, showing entitlement to relief, and
- a demand for relief sought (e.g. damages, injunction, declaratory judgment)
Statement of the Claim– Federal courts use a “notice pleading” which means
- only need to plead enough detail to put the other side on notice
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Pleaded Facts Must Support PLAUSIBLE claim.
- To determine plausibility, the judge uses her own experience and common sense.
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Claims that must be pleaded with PARTICULARITY including:
- (1) fraud or mistake,
- (2) special damages, and
- (3) judgments or official documents upon which pleading party will rely
Note: Defendant can challenge a complaint by making a Rule 12(b)(6) Motion
PreANSWER Pleadings and Motions – Rule 12 Motions AND Timing Implications
Rule 12 requires a D to respond in one of two ways: (1) by answer or (2) by motion.
PREANSWER Motions
- Motion to Dismiss
- Motion to Strike
- Motion for More Definitive Statement
- Motion for Judgment on the Pleadings
PREANSWER Motions
- Motion to Strike
- Motion for More Definitive Statement
Rule 12 requires a D to respond in one of two ways: (1) by answer or (2) by motion.
PREANSWER Motions
- Motion to Strike
- Motion for More Definitive Statement
PREANSWER Motions
- Motion to Dismiss
Rule 12 requires a D to respond in one of two ways: (1) by answer or (2) by motion.
PREANSWER Motions
- Motion to Dismiss
NOTE: A plaintiff may Voluntarily dismiss an action by filing a notice of dismissal at any time prior to service of an adverse party’s answer or motion for summary judgment.
Motions to Dismiss – Rule 12b Motions - Timing and Requirements for Answer
Rule 12 requires a D to respond in one of two ways: (1) by answer or (2) by motion.
Motions: Motions are not pleadings, they are requests for a court order.
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D may attack the validity of plaintiff’s complaint through a Rule 12 motion.
- Rule 12(b) Defenses may be raised by motion or in the answer:
- Lack of SMJ
- Lack of PJ*
- Improper Venue*
- Insufficiency of Process (problem with papers)*
- Insufficiency of Service of Process*
- Failure to State a Claim*
- Failure to Join a Necessary Party
- Rule 12(b) Defenses may be raised by motion or in the answer:
Pleadings and Motions – Answer Content
Rule 12 requires a defendant to respond in one of two ways: (1) by answer or (2) by motion.
Pleadings:
- (1) responds to allegations of the complaint and
- (2) raise affirmative defenses
The answer must be filed within
- 21 days after service of process
- or
- 14 days after a ruling on a Rule 12 motion
- or
- 60 days if D waived service by mail.
Answer Content: must do one of following
1) Admit Allegations
2) Deny Allegations–Failure to deny allegations can constitute admission on any issue except damages
3) State that there is lack of sufficient information to admit or deny allegations
Raise Affirmative Defenses–An affirmative defense raises a new fact in the case, which will allow the defendant to win. Certain defenses are waived if not explicitly pleaded in the answer; these include:
Pleadings and Motions – Answer Timing
Rule 12 requires a defendant to respond in one of two ways: (1) by answer or (2) by motion.
The answer must be filed within
- 21 days after service of process
- or
- 14 days after a ruling on a Rule 12 motion
- or
- 60 days if D waived service by mail.
Pleadings and Motions – Counterclaim (Rule 13)
A claim against an opposing party, usually by D against P. The counterclaim is part of Defendant’s answer. There are two types of counter claims”
Compulsory Counterclaim which must must asserted in the pending case or it is waived
- A compulsory counterclaim arises out of the same T/O of plaintiff’s claim.
- Unless you have already filed the claim in another case you MUST file the claim in the pending case, or the claim is waived
Permissive Counterclaim, which is not waived if the defendant fails to assert it.
- A permissive counterclaim is a claim that does not arise from the same T/O as any of plaintiff’s claims.
- It may be filed with Ds answer to Ps complaint, or can be asserted in a separate action filed by defendant
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P MUST RESPOND to a counterclaim within 21 days.
Pleadings and Motions – Cross-Claim
Claims against a co-party
MUST arise from the same T/O as the underlying action.
Never Compulsory > they may be asserted in the pending claim or a separate action.
All cross-claims must have an independent basis for SMJ.
Cross-claims will almost always have supplemental jx because they arise from the same T/O E.g. P sues D1 and D2; D1 may assert a cross-claim against D2
Pleadings and Motions – Amending Pleadings (Rule 15)
Parties may amend their pleadings once as a matter of course.
Amending as Matter of Course:
- Plaintiff can amend once with 21 days after D serves responsive pleadings or Rule 12 motion.
- D has the right to amend once within 21 days of serving his Answer.
Amending without Right: If there is not a right to amend, the party may seek written consent of the adverse party or leave of court.
- Leave of court must be sought through a motion, it will be granted if justice so requires.
- The court looks at the following factors (Lenient Standard):
- (1) delay that will be caused,
- (2) potential prejudice to the parties, and
- (3) futility of amendment.
- The court looks at the following factors (Lenient Standard):
Variance of Pleadings--If the evidence at trial doest not match the pleadings and the opposing party does not object and amendment is allowed to ensure that the pleadings match what was actually tried. If the opposing party objects, the evidence is inadmissible because it is at “variance with the pleadings.”
Pleadings and Motions – Amending Pleadings: Relation Back
Applies when a party amends a pleading to add a new claim or defendant AFTER the statue of limitations has run.
If allowed, it treats the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem
New Claims - must concern the same conduct, T/O as the original pleading.
New or Substitute D - must
- It concerns the same conduct, T/O as the original;
- and
- The new party knew of this case within 90 days of its filing AND knew that, but for mistake, she would have been named originally
- Typical Use: This applies when the plaintiff sued the wrong defendant first, but the right defendant was aware of the mistake
Joining Claims and Parties – Permissive Joinder of Parties
Permits a PLAINTIFF in certain circumstances to join other plaintiffs and/or to join several parties as co-defendant’s.
Permissive joinder is allowed where:
- (1) Joined parties assert any right to relief arising out of the same T/O as plaintiff’s claim
- (2) There is at least one common question of law or fact in the joined parties’ claims or claims against them
- E.g. After bus accident, all injured passengers and bystanders join as Plaintiffs; common issue is driver’s negligence. Other issues like damages or contributory negligence tried individually for each P
Joining Claims and Parties – Compulsory Joinder of Parties
Non-parties (absentees) may be forced to join a case if they are deemed necessary parties.
Absentees are necessary when EITHER:
- (1) Without the absentee, the court cannot grant complete relief (worried about multiple suits)
- (2)The absentee has a legal interest that may be harmed if he is not joined***MOST LIKELY ON BAR **
- (3) Absentee has an interest that create a risk of multiple or inconsistent rulings and obligations
An absentee’s joinder is feasible if: (1) There is PJ over the absentee (2) AND Joining the absentee will not destroy diversity
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If a necessary party CANNOT be joined, the court must decide whether the party is so indispensable that they should either (1) proceed without the absentee or (2) dismiss the entire case.
Joining Claims and Parties – Permissive Joinder of Parties
Under Rule 14(a), a defendant MAY join a non-party (third-party defendant) who is or may be liable to defendant for all or part of the claim against the original
Impleader allows D to assert claims for indemnity or contribution against a third-party defendant for the claim the defendant is defending.
- Court must have PJ over impleaded party, generally the court will have supplemental jx
- A defendant has right to implead a third-party defendant within 14 days after serving answer by filing a third-party complaint against the third-party.
- After 14 days, D must get permission from the court
- Once a third-party D is joined, they may make claims of her own against other parties as long as SMJ exists over EACH CLAIM (usually exists through supplemental jx).
- The original plaintiff may assert claims agains the third- party defendant arising from the same T/O as plaintiff’s original claim against the original defendant
Joining Claims and Parties – Interpleader
Interpleader allows a property holder (stakeholder) to initiate a suit to compel multiple claimants (defendants) to that property to litigate the dispute.
Rule 22: Under Rule 22
- complete diversity is required between the stakeholder and all other claimants
- amount in controversy must exceed $75K.
Federal Statute: Under federal statute
- one claimant must be diverse from at least one other claimant and
- the amount in controversy must exceed $500.
Ex: Deceased had life insurance policy with DE Corp. having PPB in CA; claimants from NJ, NV, & CA all claim interest
- Rule 22 = Improper because lack diversity
- Federal Statute = Proper because claimants from different states
Pleadings and Motions – Rule 11 Certifications & Sanctions
Attny or Pro Se must sign all pleadings, written motions, and other papers (does not apply to discovery).
Certifications: Signature certifies that to the best of her knowledge or belief, after reasonable inquiry (CANNOT TAKE CLIENT’s WORD as Sole Inquiry):
- papers are not for an improper purpose (e.g. harassment or delay)
- Legal contentions are warranted by law (e.g. non-frivolous)
- Factual contentions and denials have evidentiary support or are likely to have such support upon further investigation
In addition, this certification is made every time a position is presented to the court. If there is a violation, sanctions may be imposed either on the courts own initiative or an opponent party’s motion.
Sanctions can be imposed on the (1) party, (2) attorney, or (3) law firm. Before a sanction can be imposed, the court must give the party a chance to be heard Rule 11 motion for sanctions may not be filed until 21 days following service of the
Class Actions – Class Action Overview (Rule 23)
A class action exists when a representative sues on behalf of group. Only the representative class member(s) must satisfy requirements of PJ, SMJ, and venue.
In order to be a class action four requirements must be satisfied
- Numerosity: The class size must be so numerous that joinder is impracticable. There is no exact threshold as to class size requirement it depends on context of case and claims
- Commonality: There must exist some issue in common to all class members so resolution of that issue will generate answers for everybody in one ruling
- Typicality: The claim or defenses of the class representative are typical of those in the class
- Adequacy: The class representative must fairly and adequately represent the entire class
Class Actions – Types of Class Actions
Prejudice Class Action: Class treatment is necessary to avoid harm (prejudice) either to class members or the non-class party.
Injunction or Declaratory Judgment Class Action: Allows class where suit requests injunctive or declaratory relief as the primary relief sought e.g. employment discrimination, civil rights cases
Damages Class Action: Most common class action type. Used when the primary relief sought is damages.
- This class requires:
- (1) common questions of law or fact predominate over individual questions, and
- (2) class action is the superior procedure to other procedures to resolve the dispute.
- Class members have OPT-OUT rights, the judgment only binds class members who do no opt-out.
- All reasonably identifiable class members in a damages class action must be notified of the pendency of the action, including opt-out rights and right to appear via separate counsel
Class Actions – Class Action Certification
Class Action Certification: A court must determine at an early practicable time whether to allow the case to proceed as a class action (i.e. certify class).
If a class is certified, court must:
- Define the class (i.e. who can be a class member), the class claims, issues and defenses
- Appoint class counsel who must fairly and adequately represent the interests of the class as a whole
Certification can be appealed via interlocutory appeal before final judgment on the merits
Class Actions – Class Action Settlement and Judgement
A class action judgment is binding to all absent class members, unless they opt- out if applicable
Settlement:
- Court must approve any settlement reached between class representatives and opposing party.
- Settlements must be fair, reasonable, and adequate.
- Court will seek feedback from absent class members in deciding whether to approve or reject settlement
Discovery – Scope of Discovery
Scope ofDiscovery: Material is discoverable if:
- Non-privileged
- Relevant to a claim
- AND Proportional to the needs of the case, considering:
- Amount in controversy
- Importance of issues at stake in the action
- Resources of the parties involved
- Importance of discovery in resolving issues at stake
- Whether the burden or expense of the proposed discovery outweighs its likely benefit
Even if information would be inadmissible at trial, it may still be discoverable if it would is reasonably calculated to lead to admissible evidence
Discovery – Mandatory Disclosures (Rule 26(a))
Mandatory Disclosures: Must disclose irrespective of requests from the opposing party.
Timing
- Initial disclosures must be made within 14 days of the parties Rule 26(f) meet & confer.
- Parties served or joined later must make initial disclosures within 30 days of being served or joined.
Parties must initially disclose:
- Sources of discoverable information which includes identifying all persons, documents, and electronic sources likely to have discoverable information
- A computation of damages claimed
- Any insurance agreement that may be used to satisfy all or party of a judgment
Discovery – Requests for Admission (“RFAs”) (Rule 36)
Requests for Admissions are request to parties to admit the truth of discoverable information.
Responding party can admit, deny, or state that it lacks sufficient knowledge
- If a party had admitted information, it does not have to be litigated at trial; opposing party can show jury the admission.
The deadline for responses is 30 days.
Discovery – Interrogatories (Rule 33)
Interrogatories are written questions proposed by one party to an opposing party to be answered under oath . They are typically used to ask about the identity of documents and people who may have information related to claims and defenses.
The maximum number of interrogatories that can be sent to a party is 25, unless there is a court order or stipulation for more.
The deadline for responses is 30 days from service.
Discovery – Depositions (Rule 30)
Depositions (Rule 30): A Deposition is a live, oral proceeding in which an attorney may examine any person under oath. The testimony is sworn and subject to penalties for perjury.
Depositions may cover issues within the scope of discovery.
- A deponent’s counsel may object to questions, but deponent is still required to answer, unless an objection is based on privilege counsel can instruct deponent not to answer
Depositions are limited to 1 day for 7 hours. Court approval must be sought to take more than 10 depositions or depose the same person twice
Parties: A notice of deposition will compel attendance.A 30-day notice is required for production of documents
- Non-Parties: A non-party may be deposed but must be subpoenaed. A Subpoena duces tecum is used to compel a non-party witness to bring documents to a deposition
Businesses: A business may designate a person most qualified to attend a deposition and provide testimony
Discovery – Requests for Production (“RFPs”) (Rule 34)
Requests for Production are written requests to a party to make documents or other things within the party’s control available for review, inspection, and/or copying.
The deadline for responses is 30 days after RFP served.
Need subpoena for non-parties
Discovery – Privileged Material
PrivilegedMaterial: Privileged material is undiscoverable. The types of privileges recognized include:
- Attorney-Client
- Work-Product
- Qualified: Evidentiary (factual) material prepared for litigation purposes. Protected unless opposing party shows (1) substantial need for material and (2) material is not available through other means
- Absolute: Documents containing subjective thoughts of an attorney or party representative concerning the litigation. This privilege cannot be overcome by need for information
- Physician-Patient
- Clergy-Penitent
- Marital
- Journalist-Source
- 5th A Privilege Against Self-Incrimination
Objections based on privilege must be stated with particularity
Discovery – Protective Orders (Rule 26(c))
AProtective Orders (Rule 26(c)): A Protective Order is a court order issued for good cause limiting, conditioning, delaying, or barring discovery of affected discovery of material.
It is sought by the party seeking to prevent disclosure of material that is
(1) privileged,
(2) highly embarrassing,
(3) trade secret, and/or
(4) clearly outside the scope of appropriate discovery
Discovery – Motions to Compel (Rule 37(a))
A Motion to Compel allows a party to move for an order compelling disclosures or discovery of requested material. Often arises when discoveree (party holding info) claims withheld materials are privileged
The motion must certify the moving party has made a good faith attempt to obtain discovery absent court intervention. A judge will call hearing to confer with parties regarding dispute and make a decision on whether material may be withheld
Discovery – Discovery Sanctions
A court may sanction parties for discovery violations, either on its own or upon motion of a party. A court can sanction any type of failure to comply with discovery obligations or court order Sanctions will depend on the type of violation:
(1) Partial violations such as, party’s making frivolous RFA objections, are less serious discovery violations. A court may: a) Issue order compelling discovery to respond to discovery requests b) Can also award costs to party for bringing motion to compel (including attorney’s fees)
(2) Complete violations, such as violation of a discovery order, are wholesale violations of discovery rules. A motion to compel is not required before moving for sanctions. A court may: a) Strike Pleadings b) Disallow Evidence c) Establish disputed or unanswered facts as true
Judgements – Judgment as a Matter of Law (FRCP 50) aka JMOL or “directed verdict”
TIMING
Judgment as a Matter of Law (FRCP 50) aka JMOL or “directed verdict”: In extraordinary circumstances, a judge can take a case from the jury and render a decision on an issue. This can occur during trial (JMOL) or after jury verdict (RJMOL).
Judgements – Judgment as a Matter of Law (FRCP 50) aka JMOL or “directed verdict”
Judgment as a Matter of Law (FRCP 50) aka JMOL or “directed verdict”: In extraordinary circumstances, a judge can take a case from the jury and render a decision on an issue. This can occur during trial (JMOL) or after jury verdict (RJMOL).
- motion brought by either party because a case is submitted to a jury.
- D can bring motion upon close of P’s evidence or all evidence. P can file at close of all evidence. Court views evidence in light most favorable to nonmoving party.
Standard:
- A court can grant JMOL on an issue if a reasonable jury would not have a sufficient evidentiary basis to disagree as to the result (i.e. reasonable people could not disagree)
Judgements – Renewed Motion for Judgment as a Matter of Law aka RJMOL or “judgment notwithstanding the verdict” or “JNOV”
Renewed Motion for Judgment as a Matter of Law aka RJMOL or “judgment notwithstanding the verdict” or “JNOV”:
After court enters judgment based on jury verdict, the losing party can file RJMOL for entry of judgment in his favor.
This must be filed 28 days after entry of judgment
and
can only be filed if a JMOL was originally filed.
Court may grant RJMOL if reasonable people could not disagree (i.e. could not disagree verdict was wrong). Court views evidence in light most favorable to nonmoving party
Claim Preclusions – Claim Preclusion (Res Judicata)
Claim Preclusion (Res Judicata): A party that has had an OPPORTUNITY to litigate a claim cannot relitigate the claim once final judgment has been rendered (i.e. parties can only sure on a claim or COA once).
Claim preclusion is an affirmative defense, should be raised in D’s answer.
Same Parties: The 2nd case was brought by the same party against the same party (i.e. same P against same D)
Same Transaction-Occurence =”Same Claim”: Same claims in the first and subsequent suit
- Even if not previously raised, claim can be precluded if it is sufficiently related to prior claims
Final Judgment on the Merits in Original Claim
- A case is final even if it is being appealed
- Judgment is on merits except if based on either:
- Jurisdiction
- Venue, or
- Indispensable Parties
Issue Preclusion – Issue Preclusion (Collateral Estoppel)
Issue Preclusion (Collateral Estoppel): prevents relitigation of particular issues of fact or law that have been actually litigated and previously determined. <u><strong>Claim preclusion only requires opportunity to litigate</strong></u>
- (Narrower than claim preclusion; does not preclude the whole claim necessarily, just the same issue)
An issue will be precluded if:
- Valid final judgment on the merits in the first case
- Same Issue: The same issue was actually litigated and determined in the first case
- Issue was Essential to the Judgment: Judgment would have been different in the first case absent litigation of this issue. Must be clear how the issue was decided by the original trier of fact
- Asserted (in current action) AGAINST actual party (in the prior case)
Who may ASSERT (initiated) issue preclusion:
- Mutuality (traditional view): Only parties to prior litigation can assert issue preclusion
- Non-mutuality (modern view): Issue preclusion may be asserted by those who were not parties in prior litigation
Issue Preclusion – Issue Preclusion: Offensive & Defensive Use of Prior Judgment
Issue Preclusion: Offensive & Defensive Use of Prior Judgment: Non-mutual issue preclusion may be used defensively or offensively
Defensive Use of Prior Judgment– D seeks to prevent P from relitigating an issue P previously lost in prior suit against different party.
- Allowed if party against whom issue preclusion is asserted had a full chance to litigate the issue previously
- E.g. D in second case can preclude P from relitigating an issue lost to another D in prior case
Offensive Use of Prior Judgment– P seeks to prevent D from relitigating issue that D previously lost in prior suit against different party
- rarely allowed
- Court will only allow if deemed fair after balancing factors:
- Whether party against whom prior judgment is asserted had full and fair opportunity to litigate
- Whether party could foresee multiple suits being filed
- Whether issue preclusion was unavailable in prior action
- There are no inconsistent judgments on the record
