MBE Federal Civil Procedure Flashcards
SUBJECT MATTER JURISDICTION (SMJ)
SMJ — Court’s Jursidiction over the TYPE of CASE
- Lack of SMJ can be raised by any party, any time, even on appeal. Can’t waive SMJ.
2 ways to get SMJ over the case
A) Diversity — All Plaintiffs must be domiciled in different states from All Defendants AND Case must be worth more than 75k.
1) All Plaintiffs and Defendants Must be CITIZENS of Different States.
- Diversity requires COMPLETE DIVERSITY of citizenship (plaintiff side v. defendant side – 1 common state ruins diversity)
- Diversity MUST EXIST WHEN THE COMPLAINT IS FILED — Does not matter that diversity did not exist when cause of action arose or after the case is filed or goes to trial.
- NATURAL PERSONS: DOMICILE — Permanent Residence (Presence + intent to remain indefinitely) A person always has one—and never more than one— domicile. You keep your domicile until you have a new domicile
- Foreign Citizens — diversity exists for controversies between a citizen of a state and a citizen of a foreign country.
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Stateless Persons — Diverse citizenship does NOT exist when a suit involves stateless persons—i.e., (1) noncitizens present in the U.S. but not citizens of a foreign country or (2) U.S. citizens domiciled in a foreign country.
Corporations — Anywhere they are Incorporated OR Principal Place of Business (executive offices) Multiple citizenships simultaneously. - Partnerships and Unincorporated Associations — Citizens of every state which its members/partners are citizens
- Representative Parties — General Rule: citizenship of the representative controls — Exceptions: Estate/Guardian Cases (Citizenship of decedent/minor or incompetent controls)
- Class Actions — citizenship of the named or representative parties. Other members can join without regard to citizenship.
2) Case Must be Worth MORE Than 75k — Any Good Faith allegation exceeding $75k ($75,000.01) will suffice (case does not need legal certainty to result in more than $75k)
- Aggregating claims to reach $75k?
- 1 P / 1 D — CAN aggregate ALL claims, even unrelated claims
- 1 P / Multiple D’s — ONLY IF If the D’s are jointly liable to the plaintiff, then aggregation is permissible.
- Multiple P’s / 1 D — CAN’T AGGREGATE. Each plaintiff must be seeking more than $75k from the defendant.
B) Federal Question — Plaintiff’s complaint must arise under Federal law/matter.
- Plaintiff’s claim (complaint) must be based on Federal law, not defendant’s anticipated defense.
- Example: Admiralty law, IP law, Federal Statute
- Federal question jurisdiction may exist over a cause of action arising under state law if the court determines that the interpretation or application of state law may affect the outcome and the federal issue or interest is important enough to justify the exercise of jurisdiction.
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Exception to Complete Diversity – Minimal Diversity - Minimal Diversity Exists if ANY plaintiff is diverse from ANY defendant. Permitted in the following circumstances:
- Federal Interpleader Act: Stake in property w/ multiple interests. 1 suit to resolve all
- Class Action Fairness Act: Class Action with at least 100 class members and claims over $5 million.
- Interstate mass torts: at least 75 people have died in one accident and plaintiff’s and defendants are from many different states (e.g., airline crash)
Actions that create or destroy diversity – permitted, so long as they are not “shams” or fraudulent
- Moving is permitted, even if intentionally done to affect diversity, so long as the change in domicile is genuine (intend to stay)
- Complete Assignment of a Claim is permitted so long as the assignment is real (for value), complete, and not collusive.
- (partial Assignment of a claim for the purpose of debt collection does NOT affect citizenship if the assignor retains an interest in the claim)
Amount in Controversy
- Note: Smaller claims may be able to get in by Supplemental Jurisdiction (suing along side people who have bigger claims that exceed 75k)
SUBJECT MATTER JURISDICTION (SMJ) >
Supplemental Jurisdiction
ORIGINAL JURISDICTION
- Federal question – claim arises under US constitution, treaty, or federal law or
- Diversity – opponents are citizens of different states and amount in controversy exceeds $75,000
SUPPLEMENTAL JURISDICTION
- Claim shares common nucleus of operative facts as the claim within courts original jurisdiction
Diversity Jurisdiction
- Permissive joinder by plaintiff would maintain complete diversity
- Supplemental claim seeks less than 75k 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
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Basic Rule — Supplemental Jurisdiction (SJ) allows a federal court to hear a claim over which it otherwise would not have jurisdiction if the claims arise from the same case or controversy
- they arise out of the same common nucleus of operative facts.
- The claims arise out of the same transaction or occurrence
- Decision is within the discretion of the trial court and is typically made on practical grounds. Not required to hear claim.
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Federal Question Cases — Supplemental jurisdiction allows additional claims that arise out of the same transaction or occurrence as the opposing party’s anchor (federal) claim.
- true whether or not those state claims involve the joinder of an additional party. “pendent-party jurisdiction.”
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Diversity Jurisdiction Cases — Supplemental jurisdiction allows supplementary claims that arise out of the same transaction or occurrence as the opposing party’s anchor claim.
- No supplemental Jurisdiction if diversity destroyed.
VERY LIMITED FOR PLAINTIFFS — Supplemental jurisdiction is broadly available for RELATED claims by Defendants but much more LIMITED for claims by plaintiffs (Precludes supplemental claims against any person who is made party by impleader, joinder, intervenention - almost all)
- Plaintiffs can ONLY take advantage of supplemental jurisdiction for related claims against a SINGLE defendant (permissive joinders and class actions)
Compulsory counterclaims — will get in under supplemental jurisdiction.
- they arise out of the same transaction or occurance as the anchor claim
- NOT permissive counterclaims (not related claims)
Cross-claims — will come in under supplemental jurisdiction if:
- they arise out of the same transaction or occurance as the anchor claim and
- if are asserted by a DEFENDANT
PERSONAL JURISDICITON (PJ) >
In Personam
PJ — Courts Jurisdiction over the DEFENDANT (or property)
Default Federal rule— use the long-arm statute of the state in which the federal court sits (chief means of asserting PJ over out-of-state defendants)
Questions
- Has the basis for excercising PJ over an out of state D been authorized by statute or by rule of court? (Usually is by long-arm)
- Does it violate Due Process? (minimum contacts test)
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1) IN PERSONAM JURISDICTION
DUE PROCESS REQUIREMENTS — sufficient minimum contacts between defendant and the forum state such that the exercise of jurisdiction would be fair and reasonable.
i) Minimum Contacts test – Purposeful availment of forum state’s laws so suit is foreseeable:
- Purposeful Availement– Contacts cannot be accidental. Defendant must actually reach out to the forum in some way, such as to make money there or to use the roads there. Defendant’s purposeful availment of the protection of the forum state’s laws
- Forseeability – Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he risks being party to a suit in a particular state.
- Stream of commerce test – defendant places goods in stream of commerce & takes action that intentionally targets forum state
- Effects test – defendant commits intentional tort in one state with intent that effects will be felt in forum state
- A subsidiary’s minimum contacts may be imputed to its parent corporation when the subsidiary is acting as the parent corporation’s agent or alter ego.
Fair play & substantial justice – Reasonableness factors:
- Burden on defendant to appear & defend in forum state
- Plaintiff’s interest in obtaining relief in forum state
- Forum state’s interest
- Interstate judicial system’s interest in obtaining most efficient resolution of disputes
- Interest of several states in furthering fundamental substantive social policies
A valid judgment is enforceable in another state w/o minimum contacts
- 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.
GENERAL in personam jurisdiction -
- P CAN ASSERT ANY CLAIM
a) Physical Presence in State + service
- exceptions:
- D was there to answer a summons;
- brought there by force or fraud.
b) Domicile — resides + intent to remain indefinitely
- Independent of physical presence
- Corporation — State of incorporation + Principal Place of Business
- systematic and continuous activity in the State.
c) Consent
- Express: By contract, or stipulates to personal jurisdiction once an action is brought.
- implicitly: through conduct, such as filing a counterclaim or driving a vehicle within a state(by not raising the issue)
- by appointment of an agent for receiving of process within the state
SPECIFIC in personam jurisdiction —(though state long arm)
- Plaintiff’s claim must ARISE FROM D’s contact with the forum.
STATE LONG-ARM – State Law that gives Federal courts in personam jurisdiction over out-of-state defendants but ONLY for claims arising from the particular transactions WITHIN that state.
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EXCEPTIONS that extend in personam jurisdiction of federal courts BEYOND state boundaries where they sit.
EXCEPTION — Federal Interpleader Act (i.e., “statutory interpleader”)
- Congress can authorize nationwide service of process. Service anywhere in the U.S. establishes PJ
EXCEPTION — The Bulge Provision of the Federal Rules – Allows service anywhere within 100 miles of the federal courthouse, even if in another state, in two situations:
- (i) impleading 3rd party defendants (R. 14)
- (ii) joining necessary parties (R. 19)
EXCEPTION — Rule 4(k)(2)
- When the plaintiff is suing under federal law and NO state has
jurisdiction over this defendant, the federal court can exercise jurisdiction so long as the defendant has sufficient contacts with the U.S. as a WHOLE.
Buzzwords: Will not violate Due Process (it’s fair)
Personal Jurisdiction (PJ) >
In Rem Jurisdiction
Quasi In Rem Jurisdiction
IN REM JURISDICTION — Suit brought directly against PROPERTY (the res)
In rem jurisdiction exists over property located in the forum state (minimum contacts)
- When a court has in rem jurisdiction, it can adjudicate the rights of all parties to the property that is the subject of the action.
- The forum court generally has personal jurisdiction over a defendant when the dispute centers on ownership of property located in the forum state.
- The res: may be any property real (e.g.,land) or personal (e.g., bank account).
QUASI IN REM JURISDICTION Suit to adjudicate the claim to property of a particular defendant (Historically a way to get a defendant’s assets)
- quasi-in-rem action are subject to the same minmum contacts test as applied to personam jurisdiction.
- When the property is the subject of the suit, it will constitute an important “minimum contact” between the defendant and the forum (specific in personam jurisdiction)
REMOVAL
REMOVAL of the case from STATE Court to FEDERAL Court
Elements
1) ONLY IF Federal Court would have had original jurisdiction over the action in the first place (SMJ — Diversity or Federal Question)
2) ONLY DEFENDANT may be the one doing the Removal.
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- Home Rule — If Removal is solely based on Diversity, Defendant CANNOT REMOVE if ANY DEFENDANT is a Citizen of the State where the Plaintiff Filed the State action.
- ALL defendants must consent to removal within 30 days of service
- Must remove within one year of the commencement of the action in state court, UNLESS the plaintiff acted in bad faith to make the case non-removable.
Removal Procedure
1) Original case filed in State Court
2) Defendant files a notice of removal in the FEDERAL court, with a copy to the state court
- Instantly and automatically ends State Court’s jurisdiction
3) Plaintiff can file in federal court a petition for “REMAND”, and it is on that petition that the federal court will hold a hearing.
- “Remand” — is to send case back down to State Court.
Home Rule
- Makes Sense — Removal under diversity jurisdiction is designed to provide Defendant’s with a neutral Federal forum for litigating claims against citizens of other states in their own state due to fear that state courts might be biased in favor of their own citizens and against out-of-staters. But if the plaintiff is willing to file in the defendants own state, that worry is gone.
VENUE
Venue is the DISTRICT in which to bring an action.
- claim of improper venue must be made at the first opportunity or it is waived (pre answer motion or answer/amended answer)
- Plaintiff chooses venue, we are concerned with defendent. They must object to venue
Venue is PROPER:
1) Where ANY DEFENDANT RESIDES (only if ALL Defendant’s reside in the same State)
- Residence – Domicile (resides + intent to remain indefinitely)
- Business Entities (Corp) resides in every district which which PJ exists—may have multiple (incorporated, ppb)
- Foreign Defendant – venue is proper in any judicial district
2) Where SUBSTANTIAL PART of events/activities that gave rise to the action took place.
- or where a “substantial part of the property” that is the subject of the action is located.
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3) Where Defendant is SUBJECT TO PJ — Reachable
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VENUE TRANSFER
TRANSFER – Original Venue Proper
- RULE: May be transferred to another district where there is proper venue, or to a where all parties have consented for conveniece of the parties and witnesses.
- Decided by balancing the relative convenience offered by the alternative forums, the original court has discretion
TRANSFER – Improper Venue
- a case without proper venue may be (i) dismissed or (ii) transferred to another proper venue
- Transfer is more appropriate than dismissal except in extraordinary circumstances.
Forum non conveniens
- The doctrine of forum non conveniens allows a federal court to dismiss a case—even when venue is proper in that court—if a state or foreign judicial system is better suited to hear the dispute
Effect of Forum Selection Clauses
- Will be enforced by means of a motion to transfer “in the interests of justice” unless exceptional public interest factors dictate otherwise.
Controlling Law upon Transfer
- If originally filed with proper venue - law of the first forum
- If not originally filed with proper venue - law of the new forum
Removal Venue - Proper Where State Court Sat
- even if that district would not have been proper originally. Plaintiff chose State Court, Removal Done by Defendant’s.
Special Venue Provisions
Case Against a Federal Official – An action against an officer or employee of the United States or its agencies acting in an official capacity or under color of legal authority MAY be commenced in a judicial district in which:
- A defendant in the action resides;
- A substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; or
- The plaintiff resides, if no real property is involved in the action.
Case Brought Under the Federal Tort Claims Act – When the U.S. government is sued under the Federal Tort Claims Act for the tortious conduct of a federal employee, venue is proper where the plaintiff resides or where the act or omission complained of occurred.
Erie Doctrine — Choice of Law
Approach: see what the court is sitting in…
A) Federal question jurisdiction – No Erie problem. Federal law will apply and there is no need to examine applicable state law.
B) Diversity Jurisdiction (different states, 75k+)
- Question becomes: is the issue at hand is substantive or procedural?
Procedural Issue
- Must apply FEDERAL procedural rules (the FRCP)
Substantive Issue
- Must apply STATE substantive law of the state in which it sits.
- This includes the State’s choice of law rules. (set of rules used to determine which jurisdiction’s laws to apply in a lawsuit)
In determining a state’s substantive law, the U.S. district court will be bound by:
- the rulings of the state’s highest court. If the state’s highest court has not spoken on an issue,
- must try to determine how the state’s highest court would rule on the issue, if it did consider it. (To make this determination, the federal court will generally look to any lower state-court decisions that have considered the issue and will follow a lower court’s view, unless it believes that the highest state court would not follow it.)
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Unclear whether substantive or procedural
- If the applicable state and federal laws do NOT conflict with respect to the issue, then the court can harmoniously apply state and federal law to the issue.
- If the applicable state and federal laws do conflict, then the district court must ask whether a valid federal statute or Federal Rule covers the disputed issue.
- FEDERAL LAW / RULE ON POINT, then the district court must apply FEDERAL LAW (supremacy) rather than state law SO LONG AS the law is arguably procedural and does not abridge, modify, or enlarge a substantive right.
- NO federal statute / rule on point, then the court must determine whether federal common law, rather than state law, should be applied. (below)
Apply State law if:
- State law is OUTCOME DETERMINITIVE; and
- No countervailing federal policy interests
Apply Federal Common Law if:
- State law is NOT outcome determinitive or
- Countervailing federal interests are at stake
Substantive Law:
- rules that govern conduct,
- elements of prima facie case
- COA statute of limitations
- burdens of proof
- rules on conflicts of law (i.e.,which state’s law applies)
Procedural Rules:
- Federal Rules of Civil Procedure
- Federal Rules of Evidence
SERVICE OF PROCESS
SERVICE OF PROCESS (Summons + Complaint)
- proper if it provided adequate notice or is reasonably likely to inform
- Who can serve? – Any person who is at least 18 years old and not a party to the action may serve process
- Time Limit for Service – within 90 days after filing the complaint. can be extended for good cause.
How Service is Made (Individuals & Entities)
(i) Personal Service –Deliver process to defendant personally
(ii) Substituted Service – Deliver process to:
- defendant’s agent authorized by appointment or law to receive process or
- resident of defendant’s dwelling who is of suitable age & discretion
(iii) State rules – Follow rules of state where court sits or service is made
Service by Publication
- A plaintiff must provide the defendant with adequate notice of a lawsuit that reasonably apprises the defendant of the suit so that the defendant may appear and present objections. Service by publication is permitted only when the defendant’s identity or address is unknown and unobtainable.
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1) INDIVIDUALS
- Direct Service — Hand Complaint to Defendant
- Indirect (substituted) Service — Service left at the Defendant’s home with someone residing therein of suitable age (old enough to understand and provide notice to D, maybe not a 6 year old, 13 year old maybe okay, facts will tell you)
- Minor/Incompetent — Service on the Minor/Incompetent AND their guaridan.
- Non-resident motorists — made on a state official who forwards a copy to the out-of-state defendant.
- Foreign Defendants — First Class Mail. Need some sort of acknowledgement form or return receipt to prove there was notice
2) CORPORATIONS, PARTNERSHIPS, ETC.
- By Serving a DESIGNATED/AUTHORIZED AGENT of the corporation.
- IF NOT — someone of sufficiently high placement (executives, officers, etc.)
Waiver of Service (21 DAYS –> 60 DAYS) (90 Days for Foreign D)
- Plaintiff can notify defendant (first-class mail ok for this) that an action has been commenced and request that defendant waive service of the summons.
- Defendant has 30 DAYS to respond, or 60 days if the defendant is outside the U.S.
- That defendant may still refuse to waive service, BUT if they refuse to waive without showing good cause for the refusal, FRCP states that the court must impose expenses incurred related to making service
- EXTENDS Defendant’s deadline to file answer or pre-answer motion
- EXTENDS from 21 DAYS –> 60 DAYS after the PLAINTIFF SENT the REQUEST
- 90 days for foreign Defendant
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Service on the U.S. government and its agencies and officers
Service on the U.S. government
- Deliver a copy of the summons and complaint to the U.S. attorney (or a designee) for the district where the action is brought, or send a copy by registered or certified mail to the civil-process clerk at the U.S. attorney’s office;
- Send a copy by registered or certified mail to the U.S. Attorney General; and
- If the action challenges an order of a nonparty agency or officer of the United States, send a copy by registered or certified mail to the agency or officer.
Service on U.S. agency, officer, or employee sued in an OFFICIAL CAPACITY
- Must serve the United States and also send a copy of the summons and complaint by registered or certified mail to the agency, officer, or employee.
Service on a U.S. officer or employee sued individually
- to serve a U.S. officer or employee in an individual capacity for an act or omission occurring in connection with duties performed on behalf of the United States, a party must serve the United States and also serve the officer or employee under the normal rules for serving an individual.
PRELIMINARY INJUNCTIONS
Injuction Notice Issues - Injunction is a form of relief that:
- requires a defendant to do something (mandatory injunction) or
- prohibits a defendant from doing something (prohibatory injunction).
- After the court has fully heard the case, it can issue a (permanent injunction)
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Preliminary injunction: Relief that can be issued prior to a full hearing on the merits. Requires notice to the defendant and hearing on whether it should be granted.
A plaintiff seeking a preliminary injunction must establish that:
- He is likely to succeed on the merits;
- He is likely to suffer irreparable harm in the absence of relief;
- The balance of equities is in his favor; and
- The injunction is in the best interest of the public.
Order granting injunction must:
- state reasons for issuance
- reasonably describe prohibited or commanded acts and
- state terms specifically
Temporary restraining order (TRO): used to preserve the status quo until the court can make a decision on the preliminary injunction.
A TRO can be issued without notice or a hearing only if
- (1) the movant establishes under written oath that he/she will suffer immediate and irreparable harm before the nonmovant can be heard and
- (2) the movant’s attorney certifies in writing any efforts made to give notice and why notice should not be required.
Notes
- Not appealable unless they have the affect of a preliminary injunction
- Temporary measure - cannot last more than 14 days unless the other party agrees or the court finds good cause for an extension
- If TRO issued without notice – the other party can make a motion to dissolve the TRO
Pre-Trial Procedures > Complaint
3 elements in a valid complaint:
1) Statement for grounds of jurisdiction
2) Short and plain statement of the facts
3) Demand for relief (i.e., damages)
Federal Rules only require NOTICE pleading
- All that is required is a short and plain statement of the claim showing that the pleader is entitled to relief (plausible standard)
Conclusory allegations
- under notice pleading, unconvincing and implausible allegations with no factual support should be dismissed
Special Pleading (alleged with particularity/specificity/detail)
- Fraud or Mistake
- Claims for special damages
Commencing the Action
- Complaint is filed with summons in county clerk’s office
- the FILING commences the action (i.e., statute of limitations)
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Certification and Rule 11 Sanctions Every pleading, motion, or other document filed must be signed by attorney (or unrepresented party), thereby certifying that (FRCP 11(b)) :
- Document is presented for proper purpose—not to harass, cause unnecessary delay, or needlessly increase cost of litigation
- Claims, defenses & legal contentions are warranted by existing law or by nonfrivolous argument for revising or establishing law
- factual assertions have or will have evidentiary support and
- factual denials are warranted by evidence or reasonably based on belief/lack of information
Rule 11 Sanctions: A court can impose monetary sanctions for violations of (FRCP 11(b)). Sanction proceedings can be initiated
- (1) by a party’s motion or
- (2) on the court’s own initiative—so long as the judge issues an order to show cause.
Motion for Santions – Safe-Harbor Rule
- A party cannot file a motion for sanctions until 21 days after serving that motion on the alleged violator. This safe-harbor rule gives a violator time to correct the violation.
Pre-Trial Procedures > Answer
Answer (or amended answer) must include the following items or else they are waived:
1) Admit/Deny allegations
- Whatever is NOT DENIED is deemed as ADMITTED.
2) Motions (that have not already been waived)
- 12b Motions - Lack of PJ, Improper service of process, Improper venue
- SMJ and failure to join indespensible party never waived
3) Affirmative defenses
- assertions that can negate or reduce liability even if every element of the opposing party’s claim is proven
- Both alternative and inconsistent defenses may be alleged in an answer
4) compulsory counterclaims
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Timing - rarely tested, just know procedure
- Answer due within 21 days of service of process/complaint
- Amended pleadings - 14 days from amended pleading
- If D files M2D and it is denied, has 14 days from the courts action to file answer
- court may shorten or extend these deadlines
Timing - if D agreed to waive service of process
- Answer due within 60 days (from when request for waiver was sent to D) / 90 days (if request for waiver was sent to foreign D)
Service
- If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.
- Service of an answer may be made by leaving it with a person in charge at the attorney’s office.
- The answer must also be filed with the court clerk within a reasonable time after service on plaintiff’s attorney.
Response to any form of Complaint
- Complaint
- Cross-Claim
- CounterClaim
Pre-Trial Procedures > Reply
Plaintiff’s answer to a counterclaim
- Rules governing Answers apply to a reply.
Admit/Deny allegations
- Whatever is NOT DENIED is deemed as ADMITTED.
MOTIONS >
Motion for a More Definite Statement
Motion for Judgment on the Pleadings
Motion to Strike
Motion for a More Definite Statement
- Asks that a pleading be made more specific
- Judges usually disfavor this motion (waste time)
Motion for Judgment on the Pleadings
- Very Rare
- Applies when the pleadings agree entirely on the facts and only the law is in dispute
- If facts in affidavits or discovery documents must be considered, must file for summary judgment instead of judgment on the pleadings
Motion to Strike
- Can be used to delete from a pleading scandalous or prejudicial matters that are NOT relevant to the case at hand
- Also used by the plaintiff to strike a legally invalid defense
Pre-Trial Procedures > Amended Pleadings >
1) Amendment as a matter of right
2) Amendment by leave of Court
3) Relate Back
1) Amendment as a matter of right:
- Can amend pleading once without the Courts permission within 21 days from the original pleading
- or within 21 days from Defendant’s response, if there is one
2) Amendment by leave of Court:
- After 21 days, can amend pleading by Leave of Court.
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RELATE BACK – Amended pleading RELATE BACK IN TIME to the date of the ORIGINAL pleading.
- for purposes of statute of limitations that run after the original complaint is filed
CLAIMS ADDED RELATE BACK when…
- they arise out of the same conduct, transaction, or occurrence of the original pleading.
- If not, can still amend pleadings but claims won’t relate back in time.
Adding/Changing a Party
- must concern the same conduct, transaction, or occurrence as the original pleading; and
- The party to be brought in must have known or had reason to know that the action should have been brought against that party but for the mistake
buzzwords: “if justice so requires”
Pre Trial Termination >
Voluntary and Involuntary Dismissals
Voluntary dismissal A plaintiff may voluntarily dismiss a suit for any reason. A voluntary dismissal is generally WITHOUT prejudice, which allows the plaintiff to sue the defendant again on the same claim.
- Plaintiff has a Right to a voluntary dismissal ONCE at any time prior to answer or a motion for summary judgment (m2d is not a responsive pleading)
- After that, plaintiff must seek Court order (leave of court) to voluntarily dismiss suit without prejudice. Plaintiff will have to pay the costs if they end up later filing the same action against the same defendant.
WITH Prejudice – When specified in a court order, notice, or stipulation OR the Two dismissal rule:
- 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.
Involuntary dismissal
WITHOUT PREJUDICE
- if dismissal not based on merits (lack of jurisdiction, improper venue, or failure to join an indespensible party)
- Court order states
WITH PREJUDICE
- if D moves to dismiss based on merits. (12b6 m2d, judgment of the pleadings, summary judgment)
- if D moves to dismiss for plaintiff’s failure to prosecute or failure to comply with the FRCP or any court order
MOTIONS > 12(b) Motion to Dismiss
(failure to state a claim)
12(b) Motion to Dismiss — PRE-ANSWER !!!
M2D is based on technicalities, not having to do with the merits of the claims. Dismissed without prejudice.
- (1) lack of subject-matter jurisdiction;
- (2) lack of personal jurisdiction;
- (3) improper venue;
- (4) insufficient process;
- (5) insufficient service of process;
- (6) failure to state a claim upon which relief can be granted; and
- (7) failure to join a party under Rule 19.
Failure to state a claim 12(b)(6) - Complaint fails to assert a legally cognizable claim OR fails to allege facts that sufficiently support the claim. When considering a motion to dismiss for failure to state a claim, the court must:
- (1) treat all well-pleaded facts in the complaint as true and
- (2) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant.
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MUST RAISE these at the time EARLIEST OPPORTUNITY or else WAIVED — In pre-answer MOTION TO DISMISS or In the ANSWER (or amended answer)
- Lack of personal jurisdiction
- Improper venue
- Insufficient service of process
Can raise anytime (even appeal)
- Lack of subject matter jurisdiction
MOTIONS > Judgment as a Matter of Law
1) 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.
- Raised by D after Plaintiff rests (or P after both sides rest) and BEFORE CASE GOES TO THE JURY
- Can attack claims OR defenes
STANDARD: Insufficient evidence for a reasonable jury to find for the non-movant
When considering a motion for JMOL, the court must
- (1) view the evidence and draw all reasonable inferences in favor of the nonmovant,
- (2) disregard any evidence favorable to the movant that the jury need not believe, and
- (3) not consider the credibility of witnesses or the weight of evidence.
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2) RENEWED Motion for JMOL (After the verdict comes back from the jury)
- Must be made within 28 days after the entry of judgment
- ONLY the party who originally moved for JMOL can raise this motion post-verdict
- May raise only those issues raised in the original motion for a JMOL.
Same JMOL STANDARD: Insufficient evidence for a reasonable jury to find for the other party
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Why would a Judge grant a renewed motion but not original?
- If original JMOL granted and appellate court subsequently thinks the trial court was wrong to grant the JMOL, the case will need to be retried completely becuase there was no verdict on the books.
- But, if the judge first Denies original JMOL, lets it go to the jury, and gets a verdict, Judge can subsequently grants renewed JMOL if it disagrees with verdict. NOW If appelate court disagrees with that ruling, it has a verdict on the books and can just reinstate that verdict without retrying the whole case
buzzwords: jury, evidence
RIGHT TO JURY TRIAL and DEMAND FOR JURY TRIAL
Right to Jury Trial
Claims for DAMAGES are the classic remedy at law and trigger the right to jury trial
- there is no right to jury trial for equity issues such as injunctions, specific performance, or Admiralty issues.
- When legal and equity issues overlap in one lawsuit, try the legal issues first, no matter the order in which they arose. (even if counterclaim before original claim)
Demand for Trial by Jury
- Must be made NO LATER THAN 14 DAYS AFTER service of the last pleading directed at the issue
- Either party may make a demand for trial by jury, and a party is entitled to a jury trial with regard to an action seeking damages ($$$).
Jury Selection
- Minimum of 6; Maximim of 12
- Each party gets 3 preemptory challanges (no need to justify or explain, but cant be based on race or gender)
Bench Trial
- Judge is factfinder - required to make findings of fact on the record and state conclusions of law.
Jury Instructions
- Parties may request specific instructions.
- These requests can be filed before or at the close of evidence unless the court sets an earlier, reasonable deadline. Even after the close of evidence, a party can request instructions (1) on issues that could not reasonably have been anticipated by the deadline or (2) with the court’s permission.
- Judge must inform the parties of his actions on those requests and the court’s proposed instructions before final argument.
- Court must provide an opportunity to object to proposed instructions:
- Objecitons must be on the record (preserved) for specific stated reasons (for appellate court to reconsider), and made BEFORE the jury retires to deiberate
- Only a timely objection preserves the issue for appeal
- Although the court typically instructs the jury after the conclusion of both parties’ closing arguments, the federal rules permit the court to instruct jury before the closing arguments
Jury Verdict
- Jury’s verdict must be unanimous, unless the parties have stipulated otherwise.
- Verdict must be returned by 6 jurors, unless parties have agreed otherwise.
Form of Jury Verdict – There are three types of verdicts. The judge has the discretion to choose which verdict to use:
general verdicts, – A general verdict is typically a decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages. It is the usual form of a jury verdict in a civil case.
special verdicts – A special verdict is a written finding made by the jury on each issue of ultimate fact. (e.g., “Was the defendant negligent?”) The judge then determines the legal consequences of those findings.
general verdicts with special interrogatories – This type of verdict couples a general verdict with a special verdict. Used to ensure that the jury independently considered the material facts of the case in arriving at its verdict. 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.
Appeals
The Final Judgment Rule — a federal appellate court generally has no jurisdiction to hear an appeal until the district court has issued a final judgment—i.e., a decision that fully resolves the dispute on the merits.
- MUST FILE notice of appeal in TRIAL COURT within 30 DAYS of entry of final judgment (a post judgment motion will pause this clock; e.g., JMOL)
Partial Final Judgment
- Trial court MAY enter final judgment as to one or more party and/or claim, which is then appealable ONLY IF court expressly determines that there is NO JUST REASON FOR DELAY.
EXCEPTIONS TO FINAL JUDGMENT RULE – some interim (interlocutory) orders may be appealed before final judgment. Although most interlocutory orders, such as the denial of a summary judgment motion, motions to dismiss, or the granting of a new trial motion, are NOT immediately appealable, 28 U.S.C. § 1292(a) makes certain Interlocutory orders immediately reviewable as of RIGHT:
- Injunctions—orders concerning an injunction (except those operating as TRO’s)
- Receivers—orders concerning appointment of receivers
- Patent—orders where only an accounting is left in the case
- Property—orders affecting property (e.g., attachment)
- MUST FILE notice of appeal in TRIAL COURT within 30 DAYS of entry of final judgment (a post judgment motion will pause this clock; e.g., JMOL)
Interlocutory Appeals Act— Appellate court MAY hear appeal of a non-final order if trial judge certifies in writing:
- (i) that an order involves a controlling question of law as to which there is substantial ground for difference of opinion, and
- (ii) that an immediate appeal from the order may materially advance the ultimate termination of the litigation
- In such a case, however, the application must be made within 10 DAYS after the entry of the order, rather than the 30-day period that applies to an appeal of other interlocutory orders that are immediately appealable as of right.
Class action Certification—appellate court MAY review an order granting or denying class certification
- A petition to appeal this order must be filed with the appellate court clerk within 14 DAYS after the order is entered.
- If the appellate court permits the appeal, the district court proceedings are stayed pending the appeal only when ordered by the district court or the appellate court
Collateral order exception—appellate court MAY hear an interlocutory appeal on an issue if it is:
- Too seperate from the merits of the case (i.e., collateral)
- Too important to be denied review; and
- Would essentially be unreviewable on appeal if parties waited for final judgment
Extraordinary writ—a party aggrieved by an unappealable order MAY seek a writ to compel or prohibit lower court action; must show irreparable harm will occur and normal route of appeal is inadequate
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Full Faith and Credit: Courts in the U.S., both state and federal, must give full faith and credit to judgments rendered by courts of other states, provided that the rendering court had jurisdiction
POST-TRIAL RELIEF
Within 14 DAYS after entry of Final Judgment
Attorney’s fees
- Statute or rule allows recovery
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Within 28 DAYS after entry of Final Judgment
Renewed JMOL
- Evidence legally insufficient to find for nonmovant
New trial
- Prejudicial trial error
- Prejudicial misconduct by judge, attorney, party, juror
- Verdict not supported by clear weight of evidence
- Verdict based on false/nonexistent evidence
- Excessive or inadequate damages
- Newly discovered evidence
Alter / Amend judgment
- Manifest error of law or fact is basis for judgment
- Intervening change in controlling law
- Newly discovered evidence
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Within 30 DAYS after entry of Final Judgment
Appeal
- MUST FILE notice of appeal in TRIAL COURT
- a post judgment motion above will pause this clock; (e.g., JMOL)
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FREELY (Unless Docketed - with Leave of Appellate Court)
Correction of a Judgment
- Clerical mistake
- Mistake arising from oversight or omission
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Within 1 YEAR after entry of final judgment
Relief From a Judgment or Order
- Mistake, inadvertence, surprise, excusable neglect
- Newly discovered evidence
- Fraud, misrepresentation, misconduct
Within REASONABLE time – (even more than a year)
Relief From a Judgment or Order
- Void judgment (eg, lack of jurisdiction)
- Judgment has been satisfied, released, discharged based on reversed or vacated judgment or applying the judgment prospectively is no longer equitable
- Other reason justifying relief (rare)
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At ANY TIME a federal court may:
- (1) entertain an independent action to relieve a party from a judgment, order, or proceeding,
- (2) grant relief pursuant to a federal statute, or
- (3) set aside a judgment for fraud on the court (when the integrity of the court is corrupted due to egregious conduct by judicial officers)
Appeals > Standards of Review
Standards of Review
1) Questions of law — (e.g., Conclusions of law; jury instructions)
- Standard of review: De Novo
- Did the trial court make an error?
- Was the error prejudicial?
- Reverse if reasonable belief Judge misinterpreted the law
2) Findings of Fact — (e.g., factual determinations/verdict; credibility of witnesses)
- Jury Trial: Jury Verdicts must be affirmed if supported by substantial evidence
- Bench Trial: Judge’s findings of fact must be affirmed unless they are clearly erroneous
- HIGH DEFERENCE - reverse ONLY IF no reasonable judge/jury would have made finding
3) Matters of discretion — (e.g., injunctions; admissibility of evidence, continuances, discovery limitations)
- Standard of review: Abuse of discretion
- Reverse if decision was unreasonable/arbitrary
CLAIM Preclusion (res judicata)
Preclusion APPROACH IN ORDER: (claims engulf issues)
- Is the claim in the second suit precluded by the prior adjudication? If yes, the inquiry ends.
- If not, are there any issues in the second suit precluded by the prior adjudication?
1) CLAIM Preclusion (res judicata)
Rule: a valid final judgment on the merits precludes a party from relitigating an identical claim against the same party—regardless of whether the actions were filed in state or federal court.
- also bars claims that SHOULD have been raised in the first suit.
Three Requirements
- There must have been a final judgment on the merits in the first suit
- The second suit must be between the same parties or their successors in interest; and
- The second suit must involve the same transaction or occurance
1) On the Merits –
- Does NOT actually mean claims were litigated (dismissed w/ prejudice)
- Includes Default judgment, Summary judgment, and dismissals with prejudice.
2) Same Parties –
- predecessors and successors in interest (assignor/assignee of a claim; decedent/executor of the estate; and executor of an estate/beneficiaries.)
- class actions: each and every member had their day in court already
3) Same 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 because the claim existed and could have been joined. 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
Installment Sales:
- Creditor must sue for all that is “due and owing” at the time of the suit. Future debts or obligations are a different claim.
K claims / Tort claims
- same claim if seeing redress for same harm
Choice of law
- The court presiding over the second action must decide the judgment’s preclusive effect by applying the correct law
- In determining the claim-preclusive effect of a prior federal judgment in an action based on diversity jurisdiction, federal common law requires that the law of the state in which the federal court rendered its judgment be applied, unless the state law is incompatible with federal interests.
