Other people's outlines

Question 1

Legal claim involves

Answer 1

Substantive right + remedial right.

Question 2

Examples of substantive rights

Answer 2

14th amendment due process (state deprives person…), 5th amendment due process, 15 USC 1 (prohibits conspiring to restrain trade, Bell Atlantic v Twombly), §106(3) of cpyright act giving creator the exclusive right to distribute the film (Zuk)

Question 3

Examples of remedial rights

Answer 3

42 USC 1983 (right to go to a court to seek relief for state officials violating constitutional rights.
Implied 5th amendment remedial right
15 USC 15 (treble damages) and 15 USC 26 (injunctive relief) from Bell Atlantic v Twombly, 505 of the copyright act (damages and injunctive relief) from Zuk

Question 4

preliminary injunction

Answer 4

Granted at the beginning of a lawsuit in order to prevent irreparable harm to P during the lawsuit and auto dissolves at the end.

Question 5

Preliminary injunction requirements

Answer 5

(only if 1 and 2 are met, balance 3 and 4)
1. Significant risk of irreparable harm and imminent injury to P during the lawsuit.
2. No adequate remedy at law
3. Balance of equities
4. Plaintiff’s likelihood of succes on the merits.
3 and 4 are a sliding scale: we want to minimize errors.
If P likelihood of success low, then harm in wrongly denying has to be very high.
If P likelihood of success high, then harm in wrongly denying can be less.

Question 6

Error in preliminary injunction case

Answer 6

Denying a preliminary injunction if P wins the case OR granting a preliminary injunction if D wins the case.

Question 7

X

Answer 7

X

Question 8

65(c) security for preliminary injunction

Answer 8

The court can issue a prelminary injunction only if the movant gives a security that the court considers proper to pay the costs and damages sustained if the wrong party is enjoined or restrained (unless movant is the US/officers/agencies).

Question 9

65(d) Every order granting an injunction must

Answer 9

1) state the reasons why it was issued, and 2) state its terms specifically, and 3) describe in reasonable detail (and not by referring to the complaint or other document) the act(s) restrained or required.

Question 10

Permanent injunction requirements

Answer 10

Only if 1 and 2 are met, balance 3 and 4
1. Significant risk of future irreparable harm and imminent injury to P.
2) No adequate remedy at law
3) balance of private and public intersts
4) Court’s administrative burden of enforcing it.

Question 11

If D disobeys an injunction then P can

Answer 11

motion for contempt.

Question 12

An injunction binds the following who receive notice of it

Answer 12

The parties, the parties officers/agents/servants/employees/attorneys, others who particpate with the parties or officers, etc.

Question 13

Declaratory relief

Answer 13

Would be defendant sues the would be plaintiff and goes to court to get the judge to declare that would-be D’s actions are lawful.

Question 14

Requirements for declaratory relief

Answer 14

1) Live dispute between parties (threat of litigation, ceae and desist letter)
2) A good reason to allow declaratory relief (ex. threat of a lawsuit is crippling D).

Question 15

28 USC 2201 creation of a remdy for declaratory relief

Answer 15

Courts “may declare the rights and other legal relations of any interested party seeking such declarations, whether or not further relief is or could be sought.” The declaration has the effect of a final judgment.

Question 16

28 USC 2202 further relief declaratory judgment

Answer 16

After the court has declared a party’s rights, they can grant further necessary or proper relief based on a declaratory judgment.

Question 17

How is settlment amount determined?

Answer 17

Amount depends on what parties believe a court would award at trial.
D wants to buy P’s right to go to trial.
For a settlement to be possible, D must value avoiding a trial equal to or more than P’s value of going to trial.
P’s minimum must be less than D’s maximum

Question 18

Settlement range

Answer 18

The space between P’s minimum and D’s maximum.

Question 19

P’s minimum settlement

Answer 19

Expected gain from trial - litigation costs.

Question 20

D’s maximum settlement

Answer 20

Expected loss from trial + litigation cots

Question 21

Variables in determiing P’s minimum and D’s maximum

Answer 21

1) probability that P wins (d loses), 2) expected trial award, 3) litigation costs (on both sides).

Question 22

pWhat can cause divergent probabilities on who will win?

Answer 22

One party having info the other doesn’t. Mutual optimism.

Question 23

One way fee shifting

Answer 23

If P wins, D pays P’s fees. Ex. 42 USC 1988 in 1983 cases.

Question 24

Two way fee shifting

Answer 24

If P wins D pays fees and if D wins P pays fees. Ex. Copyright act.

Question 25

X

Answer 25

X

Question 26

FRCP 8(d) can you plead inconsistent claims?

Answer 26

Allegations must be simple, concise, and dirct. A party can allege inconsistant claims or defenses.

Question 27

FRCP 10 format of pleading

Answer 27

(a) Caption with courts name, title (party names), file number (C.A. No. ____) and a Rule (7)(a) designation
(b) Claims or defenses must be in numbered paragraphs.

Question 28

FRCP 8(e) in pleading do judgs assume allegeations are true?

Answer 28

To “do justice’ the judge accepts all allegations as true.

Question 29

FRCP 3 when does a case start

Answer 29

Filing a complaint starts a lawsuit

Question 30

FRCP 8(a) contents of a complaint

Answer 30

(1) short and plain statement of the grounds for the court’s jurisdiction
AND (2) “short and plain” statement showing the pleader is entitled to relief, AND (3) a demand for relief sought.

Question 31

FRCP 12(a) timing for responses

Answer 31

Answer: Within 21 days after being served unless D waived service, then 60 days after the waiver was sent (or 90 days if sent to D outside a US judicial district).
Answer to counterclaim or crossclaim: 21 days after being served with counterclaim or crossclaim.
Reply to answer: 21 days after being served with an order to reply

Question 32

FRCP 8(b) the answer

Answer 32

Must state in short and plain terms its defenses to each claim asserted against it and admit/deny each allegation
Can specifically deny some allegations and admit others
If they don’t kow if an allegation is true, they have to state that and it’s effectively a denial
If the allegation isn’t denied and a responsive pleading is required, the allegation is admitted

Question 33

False negatives

Answer 33

Meritorious plaintiffs screened out

Question 34

False positive

Answer 34

Meritless plaintiffs not screened out.

Question 35

How does stricter pleading increase false negatives

Answer 35

Suits aren’t filed or are dismissed because P can’t get the info that they need to plead.

Question 36

How does strict pleading decrease false positives?

Answer 36

Fewer meritless claims surivive pleading.

Question 37

How do Rule 11 sanctions increase false negatives

Answer 37

Lawyers fear sanctions and won’t bring riskier cases

Question 38

How do Rule 11 sanctions decrease false positives

Answer 38

Plaintiff’s less likely to file meritless cases due to fear of sanctions.

Question 39

FRCP 18 how many claims can you bring against a single D?

Answer 39

(a) allows a single plaintiff to join any and all claims it has against a single defendant (even totally unrelated).

Question 40

FRCP 21 Misjoinder and nonjioinder of parties

Answer 40

A court can add or drop a party or sever a claim against a party on its own at any time
Misjoinder of partis isn’t a ground for dismissing an action

Question 41

FRCP 20 permissive joinder of parties

Answer 41

Allows a P to join parties if they want.
Not required but P might be precluded from joining later if they don’t join now.
Requirements:
Common question: All the claims by and against all the parties share at least one common question of law or fact
AND
same transaction requirement: all the claims must arise out of the same transaction/occurrence or series of same transactions/occurrensces.

Question 42

FRCP 14 Impleader

Answer 42

D (3rd party P) adds 3rd party D.
Requires a deriative claim that arises out of the same transaction of occurrence as P claim against D

Question 43

Derivative claim

Answer 43

A claim against a 3rd party D who is or may be liable to D for all or party of what D has to pay P

Question 44

Indemnity claim

Answer 44

3rd party will be liable to D for the whole amount if D loses.

Question 45

Contribution claim

Answer 45

3rd party will be liable to D for part of the amount if D loses.

Question 46

Claim preclusion

Answer 46

P is precluded from bringing a claim against the same D in lawsuit 2 that they could’ve brough in lawsuit 1 IF
1) valid and final judgment in lawsuit 1
AND
2) lawsuit 2 involves at least part of the transaction or series of transactions out of which lawsuit 1 arose (transaction test)

Question 47

Issue preclusion

Answer 47

A party is precluded from litigating an identical issue that was actually raised, litigated, and decided if the party already had the opportunity to personally litigate the issue (right to a day in court).

Question 48

Exceptions to day in court for issue preclusion

Answer 48

Representation: The party agreed to ahve the party in the 1st lawsuit represent them
Actual conrol/constructive day in court: The part way behind the scenes in the 1st lawsuit, actually controlling the litigation.

Question 49

28 USC 1332 diversity jurisdiction

Answer 49

Grants diversity jurisdiction to federal courts for all civil actions IF:
1) the amount in controversy exceeds $75,000
2) complete diversity across party lines. The suit (not just the claim) is between citizens of different states.

Question 50

Alien jurisdiction

Answer 50

Also under 1332. Suit is between a citizen of a state and a citizen of a foreign state. Still requires $75,000.

Question 51

28 USC 1331 federal question jurisdiction

Answer 51

District courts have original jurisdiction of all civil actions arising under the constitution, laws, or treatices of the US.

Question 52

Prong 1 1331

Answer 52

Federally created claim with a not totally stupid argument for a claim.

Question 53

Not totally stupid argument

Answer 53

Not frivolous, patently without merit, or obviously foreclosed by prior decisions.

Question 54

Prong 2 for 1331

Answer 54

State created claims with an important federal issue (central to the ase) that arises in the right way and meets certain criteria.

Question 55

Steps for Prong 2 analysis

Answer 55

1) Is there an issue of federal law?
2) If yes, Is the well-pleaded complaint rule satisfied.

Question 56

Well-pleaded complaint rule

Answer 56

Issues of federal law that arise under a state claim must necessarily arise as part of P’s prima facie case (what P must plead to meet their pleading burden).
It doesn’t include everything P actually alleged, only what they had the burden of alleging.

Question 57

28 USC 1367

Answer 57

supplemental jurisdiction

Question 58

Main claim

Answer 58

The original P sues D claim.

Question 59

1367(a)

Answer 59

A district court has supplemental jurisdiction over claims that are closely enough related to the main claim, that they form part of the same case or controversy under Article III.

Question 60

Overlap test (for supplemental jurisdiciton)

Answer 60

There’s signficant overlapping facts and evidence between each claim.
Ex. relies on the same duty, causation is an issue relevant to both and uses a lot of the same witnesses and documentary evidence

Question 61

Logical relationship test (for supplemental jurisdiciont)

Answer 61

Even if there’s not a lot of overlap, the claims are connected in some way that makes it reasonable to think of them as pieces of a single dispute.

Question 62

1367(b)

Answer 62

If the main claim has original diversity jurisdiction, the district court does not have supplemental jurisdiction over the following claims that would be inconsistent with 1332 jurisdictional requirements:
Claims by P against parties joined under FRCP 14, 19, 20, or 24

Question 63

Indivisibility theory (supplemental)

Answer 63

Original jurisdiction is determined at the beginning of the lawsuit, so the piggybacking claim must have original jurisdiction. Court rejects this.

Question 64

Contamination theory

Answer 64

Supplemental claim can contaminate and destroy jurisdiction over the main claim

Question 65

Holding of Exxon Mobil

Answer 65

P can’t use 1367 when the obstacle to 1332 jurisdiction is no complete diversity, but can use it when the obstacle is the amount in controversy requirement.

Question 66

28 USC 1441 removal jurisdiction

Answer 66

(a) if there’s original jurisdiction (diversity/federal/supplemental) over the main claim, D can remove, but only to the federal district court that geographically embraces where the state court claim is pending.

Question 67

1441(b)(2) home state exception

Answer 67

D can’t remove based on diversity jurisdiction if any D is a citizen of the state in which P brought the action.

Question 68

1441(c) removing suit, one claim has original jurisdiction, one doesn’t, what happens?

Answer 68

If a civil action includes one claim that would have federal question jurisdiciton and another claim that either doesn’t have original/supplemental jurisdiction or is non-removable by statute, the whole thing can get removed and the federal court will sever the second claim and remand it to state court.

Question 69

How long do you have to file for removal?

Answer 69

30 days of getting served with the intial pleading or 30 days of an amending pleading showing that the case has become removalbe, but also needs to be within 1 year of commencement of the lawsuit

Question 70

How long does P have to file motion to remand removal?

Answer 70

30 days after the notice of removal was filed, but for a jurisdictional defect, can move to remand at any time

Question 71

FRCP 12(h) and (g)(2)

Answer 71

A party waives motion to dismiss for lack of JOP by failing to raise it at the first opportunity 12(b)2). Same goes for motion to dismiss for improper venue 12(b)(3). Also 12(b)(4) and 12(b)(5)

Question 72

X

Answer 72

X

Question 73

When do we need to consider venue?

Answer 73

Only at the beginning of the lawsuit and for FRCP 19 joinders.

Question 74

Gilbert factors for transfering venue

Answer 74

Private interests: 1) relative ease of access to sources of proof, 2) availability of compuslory process for attendance of unwilling and cost of obtaining attendance of willing witnesses, 3) possibility of view of premises if view would be appropriate to the action, 4) other practical problems that make trial of a case easy, expeditious, and inexpensive.
Public factors: 1) administrative difficulties flowing from court congestion, 2) local interest in having localized controversies decided at home, 3) the interst in having the trial of a diversity case in a forum that is at home in with the law that must govern the action, 4) the avoidance of unnecessary probems in conflict of laws or in the application of foreign law, 5) the unfairness of burdening citizens of an unrelated forum with jury duty

Question 75

Forum nonconveniens

Answer 75

Common law rule. Used when the comparatively much better place is a foregin country because you can’t transfer the case. Often conditions. Dismisses case and forces P to file elsewhere. The fact that law is less desirable for P weights with other factors, but doesn’t bar transfer by itself.

Question 76

1404(a) transfer

Answer 76

A federal district court may transfer any civil action to any other district or division where P could’ve oriignally brought the case or to which all parties consented.
Requires the SMJ/JOP/venue.

Question 77

Notice requirement

Answer 77

It has to be reasonable. To determine what’s reasonable, the court must balance:
The interst of one side in receiving better notice (to improve their chance to participate) and the other side’s interest in its existing scheme.

Question 78

FRCP 12(h)(2) failure to state a claim upon which relief can be granted 12(b)(6) and failure to join a person required by 19(b) 12(b)(7) can be raised

Answer 78

a) in any pleading allowed or ordered under FRCP 7(a)
b) by a motion under FRCP 12(c)
c) at trial

Question 79

FRCP 12(h)(3) when do you consider SMJ?

Answer 79

Court must dismiss the action at any tim if it lacks SMJ

Question 80

FRCP 19

Answer 80

Compulsory joinder of parties.

Question 81

FRCP 19 steps

Answer 81

1) should they be joined if feasible?
2) Is it feasible for absentee to be joined?
3) Should P v D suit be dismissed?

Question 82

FRCP 19(a)(1)(A)

Answer 82

Forcing the absentee into the lawsuit to avoid serious enough harm to the court.
Consider: judicial economy. It’s efficient to join Ds given that htere’s a lot of overlapping facts, evidence,a nd arguments.
In the absentee’s absence, the court can’t accord complete relief among existing parties.
Must join parties to grant complete relief.
Ex. When an injunction requires absentee to be bound in order to be effective.

Question 83

FRCP 19(a)(1)(B)(i)

Answer 83

Forcing the absentee into the lawsuit to avoid serious enough harm to the absentee.
Consider:
1) the result in the 1st lawsuit could adversely affect absentee who is in the 2nd lawsuit by: preclusion, practical (non-legal) impairment, ex. serious impact on business.
Practical effects aren’t good enough due to slippery slope, could require all parties adversely affected by the judgment to be joined.
2) Super stare decisis (if special reason why judge in lawsuit #2 might follow the result in lawsuit #1). Oridinary stare deicsi isn’t enough due to slippery slope problem.

Question 84

FRCP 19(a)(1)(B)(ii)

Answer 84

Forcing the absentee into the lawsuit to avoid serious enough harm to D.
consider:
1) double or multiple liability (pay twice for the same thing)
2) Inconsistent obligations (ex. different injunctions in seperate lawsuits require the same party to do inconsistent things), not the same thing as inconsistent decisions.

Question 85

FRCP 19(b) should P v D suit be dismissed if SMJ, JOP, or Venue problem

Answer 85

Factors:
1) the etent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
2) the extent to which any prejudice could be lessened or avoided by protective provisiions in the judgment, shaping the reliefi, or other measures
3) whether a judmgent rendered in the person’s absence would be adequate; and
4) whether P would have an adequate remedy if the action were dismissed for nonjoinder.

Question 86

FRCP 56(a) SJ

Answer 86

the court grants summary judgment if the movant shows no genuine dispute as to a material fact and the movant is entitled to judgment as a matter of law.

Question 87

How long to file motion for SJ?

Answer 87

30 days after discovery ends.

Question 88

Point out method

Answer 88

D points out that there isn’t admissible evidence in the record to support P’s allegations.
D reviews all evidence in record and shows why none of it support P’s positino sufficiently to carry P’s burden of production.

Question 89

Foreclose the possibility method

Answer 89

D presents evidence to support a prima facie case that X does not exist.
D must submit enough evidence that, looking at D’s evidence alone, forecloses the possibility of X.
P then resonds, filing an opposition saying that they don’t think D met it’s initial burden of foreclsore
and/or
Showing additional evidence supporting X.

Question 90

After point out method/foreclose the possibility?

Answer 90

Court decides the motion.
Could a reasonable jury find for P by the trial burden of persusasion that X exists.
Court construes evidence most favorabl to NMP, ignoring credibility problems.
Under Celotex majority you look at admissible evidence plus evidence that is inadmissable due to being in the wrong form.
When weighing does case seem extremely one sided in favor of D?
When not weighing, just look at NMP evidence.

Also, judge has discretion to deny SJ even if all the SJ requirements are satisfied.

Question 91

56(d) request for more time to conduct discovery

Answer 91

NMP submits affidavit with what they’ll do with extra time (ex. depose people) and wh it will allow them to elicit helpful info.
Can do this if they show it can’t present facts essential to justify its opposition to SJ yet.
Motion for SJ would be postponed until after more discovery.

Question 92

Erie doctrine

Answer 92

When a state claim is brought in a fed court, the fed judgme must follow state substantive law and federal procedure law.

Question 93

Is SoL substantive or procedural for purposes of Erie doctrine?

Answer 93

Substantive.

Question 94

Twin aims of Erie

Answer 94

Federalism (forum shopping) and fairness

Question 95

Erie doctrine when Constitution applies

Answer 95

If yes, apply constitution over state substantive rule.

Question 96

Erie Doctrine when a federal statute applies?

Answer 96

Ask if it is constitutional (within constitutional power tribunal clause + N&P, arguably procedural?). If yes, apply federal statute (no matter how substantive it is).

Question 97

Is FRCP subject to ERie doctrine?

Answer 97

No. Erie doctrine based on RDA, FRCP subject to REA.

Question 98

Does FRCP apply when in confliction with state law?

Answer 98

Fed court must apply FRCP if it is a) constitutional (within congressional power tribunal + N&P, arguably procedural) and it does not violate the REA proviso (it doesn’t “abridge, enlarge, or mordify any substantive right”).
A valid FRCP displaces any conficting state rule no matter what the state rule is.

Question 99

Meeting REA proviso?

Answer 99

Incidental effect on substantive rights are ok.
Strong presumption in favor of meeting proviso. Many steps of approval by many smart people aware of proviso requirement. SCOTUS has never held FRCP invalid on its face.
If there’s a conflict, judge may try to get around REA conflict by interpeting FRCP to be consistent with state law.

Question 100

Federal common law vs State law under Erie doctrine?

Answer 100

Two tests from Hanna
1) Forum shopping test and 2) inequitable administration of the laws test

Question 101

Forum shopping test

Answer 101

Whether applying the different rule in federal court would encourage reaosnable Ps to forum shop when considered at a time that they could make a free choice.
1) Look at the world when P can satsify both fed and state rules.
2) whether federal rule is so much better for P than state rule that P would choose federal over state becaue of it.
If choosing the fed forum over state forum is a serious likelihood, then the fed court has to follow state’s rule.
If not significant go to IAL test

Question 102

Inequitable administration of the laws (IAL) test

Answer 102

Taps the grave discrimination concern in erie.
IAL exists when there is a substnatial nough difference between the federal rule and the state rule that unequal treatment rises to a serious level.
IAL does federalism work.

Question 103

General JOP questions?

Answer 103

1) Were they served in the state?
2) Are they at home in the state?
If yes to either, then general JOP. If no to both, no general JOP.

Question 104

Specific JOP questions?

Answer 104

1. Minimum contacts test (PA/RA)
2. Reasonable (factors: burden on D, state interest in litigating, convenience/efficiency, quality and quantity of D contact with state)

Question 105

minimum contact test SJOP

Answer 105

Sufficient minimum contacts with the forum state such that it is fair, just and reasonable, to require that D defend suit in the state.

Question 106

PA (purpose)

Answer 106

Defendent purposely availed themselves of the privileges and benefits of the forum state
It’s not unfair to burden the D to defend int the forum state if he’s received benefits from activities in the state and the suits are related to those activities.

Question 107

RA (control)

Answer 107

D can reasonably anticipate being hauled into court in the forum state (control over whether it has to defend in the state).

Question 108

FRCP 13 counterclaim

Answer 108

a) arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim and;
b) does not require adding another party over whom the court can’t aquire jurisdiction.

Question 109

compulsory vs permissive counterclaim

Answer 109

Compulsory if it arrises out of the same transaction or occurence. Permissive if it doesn’t.

Question 110

X

Answer 110

X

Question 111

What does claim preclusion prevent

Answer 111

It prevents the splitting of what should be one lawsuit into seperate suits.