Outline Flashcards
Final Appealable Order - dismissal of party or one claim
When some parties or claims are dismissed but others remain, it is a final, appealable order to the extent the court makes an express determination there is no just reason for delay.
Standards of Review - jury instruction
Preserved: abuse of discretion
Not preserved: Plain error - substantial right
It must be preserved. If it is not, plain error is used to determine whether the instruction affected substantial rights.
Standard of Review - post trial JMOL, & denial of new trial
JMOL - de novo (issue of law)
Denial of new trial - abuse of discretion
Default Judgment
Entered by a judge if:
- damages are not certain
- defendant appeared
Defendant entitled 7 days notice
Entered by clerk if:
1. damages for sum certain
2. defendant did not appear AND
3. not for more than requested in complaint
Claim Aggregation
Claims can only be aggregated if permissible by applicable law.
Motion to dismiss PJ
Motion may be filed before or with first response.
Rule 12 Dismissals
Rules 12(b)(2)-(5) are waivable. PJ, Venue, & Process.
- SMJ
- PJ
- Venue
- Process
- Service of process
- Failure to state claim
- Failure to join party
Personal Jurisdiction
Power over the Parties: sufficient contacts with the forum state to make it fair and reasonable.
Fair & Reasonable = long-arm statute + Constitutional Due Process
Long-Arm Statute
State statute granting the court power over the parties.
No Long-Arm Statute = No PJ
Constitutional Analysis of PJ
- Sufficient contacts with forum that are
- Related to the claim, and
- (in specific PJ) fairness of hailing into forum
PJ Minimum Requirements
Purposeful Availment + Foreseeability
Purposeful Availment: purposeful act targeting forum
Foreseeability: foreseeable he may be sued in forum
Specific PJ Fairness Factors
- Burden on D and witnesses
- State’s interests in providing court for citizens
- Plaintiff’s Interest
Specific PJ
Based on isolated acts occurring in the forum state.
Only proper for acts arising out of that conduct.
General PJ
Defendant at home in forum state:
Person at home if domiciled
Corporation at home where incorporated or PPB
Venue is proper when:
- Judicial district where any D resides, if all D reside in the state
- District in which substantial part of events occurred; or
- If neither of above, then where any D is subject to PJ
Service of Process Time Limit
90 days
Service of Process Requirements
Individual in US
1. personal service
2. substituted service with someone living at usual abode
3. on agent
4. by method permitted by state law where the court sits or where being served
On business or organization in US
1. on officer, manager, or agent
2. as permitted by state law
On minor or incompetent
1. any method permitted by state law where service is to be made
Waiver or formal process
Must be waived within 30 days
Failure to waive without good reason = pay for cost of service
Immunity from Service
D cannot be served on civil case when in the state as a party, witness, or attorney in a different civil case.
Removal
No later than 30 days of service of document making it removable.
Exceptions in Diversity Cases:
1. D is citizen of forum
2. not more than one year after case filed
Remand
Only available on cases removed.
If based on SMJ can be remanded at any time.
If based on anything other than SMJ, must be no more than 30 days after notice of removal.
Supplemental JDX
Applicable to original claims (except by single P based on diversity), crossclaims, and counterclaims. (Co-plaintiff can use Supp JDX based on other’s diversity claim).
Common Nucleus of Operative Fact with claim giving federal SMJ.
Erie Doctrine
Federal Law:
1. Constitution,
2. FRE,
3. FRCP
State Law:
1. elements of claim/defense
2. statute of limitations
3. Conflict/choice of law
4. new trial on excessive/inadequate damages
Forum Non Conveniens
When an outside court is the center of gravity for the case making it nontransferable. Court can dismiss or stay until filed in new court.
Same public/private factors as transfer:
Public:
1. applicable law
2. community burden of jury service
3. desire to keep local
Private:
1. Convenience (evidence and witnesses)
2. forum selection clauses
Complaint requirements
- Basis for SMJ
- Short and plain statement of claim (particularity for fraud)
- Demand for relief
Defendant Response
Within 21 days (60 with waiver of service) must:
- file Rule 12 motion (b)(e) or (f) OR
- file Answer
Amend pleadings/answer
Each party has Right to amend once within 21 days of service of Rule 12 motion or answer.
Where there is no right party must seek leave of the court.
If SOL has run plaintiff can:
- add claim that relates back (same T/O) or
- change defendant if:
a. same T/O
b. new D knew of case within 90 days of filing
c. new D had reason to know they would have been
named originally
Rule 11
Applies to all documents except discovery.
Signature certifies:
1. not for improper purpose
2. legal contentions are warranted
3. factual contentions and denials have evidentiary support
Must be served on other side first. 21 days to fix. If not fixed, file with court.
Plaintiff Joinder
Additional claims can be added whether related or not. Basis for SMJ still required.
Co-plaintiffs may sue together if:
1. same T/O
2. one common question of law/fact
Required Joinder
Court may force non-party to join if they are necessary.
3 steps:
1. Is party necessary?
2. Can party be joined?
3. If party cannot be joined, court must proceed without or dismiss.
Required joinder - Is party necessary?
Party is necessary if:
1. court cannot accord complete relief without them OR
2. their interest may be harm if not joined, OR
3. the absent party claims an interest that subjects D to risk of multiple obligations
Required joinder - Can party be joined
Party can be joined if:
1. subject to PJ
2. will not destroy diversity (party aligned as P or D based on interest)
Required joinder - If party cannot be joined
Court must proceed without or dismiss. Will look at following factors:
1. availability of alternative forum
2. likelihood of harm to absentee
3. can that harm be avoided?
Compulsory Counterclaim (Defendant Joinder)
- Same T/O
- Must be asserted in the case (part of answer) or it is lost
Permissive Counterclaim
- Not the same T/O
- SMJ required
- not compulsory and may be brought in a different case
Crossclaims
- Against Co-party
- Same T/O
- NOT compulsory
Impleader
Bring in 3rd party.
Only for indemnity or contribution, not for blaming another party completely.
Right within 14 days of answer or must request leave.
Intervention of Right
- Party’s interest may be harmed if not joined
- Same test as necessary parties in joinder
Permissive Intervention
- Common question with party claim
- usually permissible if no prejudice or delay
Class Action
Class Action is proper if:
- Numerous parties
- Common Question
- Typical parties
- Fair & Adequate representation of interests
- One of:
a. risk of inconsistent results
b. injuctive/declaratory relief
appropriate
c. common questions predominate
over other issues and class action is
superior to other methods
Class Certification Factors
- Interest of individual control
- extent and nature of litigation elsewhere on the same subject
- desirability of joint trial
- difficulties in managing class action
Class Action Fairness Act
Jurisdiction is established if:
1. any class member is diverse from any defendant
2. AIC over $5 million
3. at least 100 members
Initial Discovery Disclosures
Must occur within 14 days of 26(f) conference.
- identity of persons party may use
to support his claim/defense - things party may use to support
claim/defense - Computation of damages and
support for it - Insurance coverage
Required Disclosures about Expert Witnesses
At time set by court each party must provide:
1. identity of expert and
2. written report
After disclosure depositions may be taken.
Pretrial Disclosures
30 days before trial, party must disclose to other parties and file:
- Witnesses expected
- Possible witnesses
- Witnesses testifying by deposition
- Documents/exhibits to be used
Objections may be served within 14 days after disclosures
Discovery Requests
Information can be exchanged after initial disclosures, BUT discovery requests cannot be sent until after 26(f) hearing.
Depositions
- No more than 10
- No more than (1) 7-hour day
- No more than 100 miles travel for non-party unless he agrees
Deposition of Organization
- Can “notice” the deposition describing the facts seeking through deposition
- Org must then designate person to testify on that matter
Interrogatories
- Parties only
- 30 days to respond after service
- No more than 25
Request to Produce
Request for docs, things, ESI, enter property to inspect.
- Can be made 21 days after service of process
- 30 days to respond after service
- parties only
Medical Exam
- Requires court order
- Must show good cause AND health is in actual controversy
- Only applicable to party or someone in his legal custody or control (NOT an employee)
- Party seeking order chooses physician
- Examinee entitled to any report physician wrote
a. if he does receive report, he waives doctor-patient
privilege and must disclose all medical reports about the
condition
Request for Admission
- parties only
- 30 days to respond
- Admit, specifically deny, or object
- If do not know, must state reasonable inquiry and inadequate information to admit or deny
Scope of Discover
- Anything relevant to claim or defense and proportional to needs of case
Discovery & work product
- prepared in anticipation of litigation
- does not have to be prepared by lawyer
- Discoverable if:
a. substantial need AND
b. not otherwise available
NOT mental impressions, opinions, conclusions, or legal theories
Privilege and Discovery
Confidential information between lawyer and client.
Privilege must be express and materials described in detail
If inadvertently produced notify other party promptly. Other party must destroy, return, or sequester the information.
