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Rules Flashcards

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1
Q

When does an Erie issue arise?

A

When we have a diversity of citizenship case in federal court, the claims will be based on state law. In deciding the issue(s), the federal judge must decide whether to apply state law or ignore it.

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2
Q

How to approach an Erie question?

A

Step 1: Is there a federal law on point that directly conflicts with state law? (If yes, apply the federal law as long as it’s valid)

Step 2: If no federal law on point, judge may apply state law if the issue if “substantive.” Five issues are clearly “substantive” and require applying state law:
a. Conflict or choice of law rules
b. Elements of a claim or defense
c. Statutes of limitations
d. Rules for tolling statutes of limitations
e. Standard for granting a new trial b/c jury’s damages award was excessive / inadequate

Step 3: If no federal law on point, must determine whether issue is “substantive”… factors:
* Outcome determinative (would applying/ignoring state law affect outcome of case? If yes, probably substantive)
* Balance of interests (does either fed or state system have strong interest in having its rule applies? The one with greater interest should have its law applied)
* Avoid forum shopping (if fed court ignores state law, will it cause parties to flock to fed ct? If so, probably apply state law)

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3
Q

How do we know a FRCP is “valid” for Erie purposes?

A

The FRCP are presumptively valid and are OK if they are “arguably procedural.” None has ever been held invalid by SCOTUS.

TLDR: If there’s (i) an applicable FRCP that’s (ii) arguably procedural, that’s what applies in federal court

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4
Q

If there is no federal law on point in a diversity case, when must the federal judge apply state law?

A

When the issue to be decided is “substantive”

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5
Q

What kinds of issues are always considered “substantive” for purposes of deciding whether to apply state law in a diversity case?

A
  1. Conflict (or choice) of law rules
  2. Elements of a claim or defense
  3. Statutes of limitations
  4. Rules for tolling statutes of limitations
  5. The standard for getting a new trial because the jury’s aware was inadequate or excessive
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6
Q

If there is no federal law on point in a diversity case and the issue is not one of the 5 enumerated “substantive” issues, how does the court determine whether to apply state law?

A

We’re still asking whether issue is “substantive”… apply factors:

1) OUTCOME DETERMINATIVE: Would applying/ignoring state rule affect the outcome of the case?
2) BALANCE OF INTERESTS: Does the fed or state system have strong interest in having its rule applied?
3) AVOID FORUM SHOPPING: If the fed ct ignores state law on the issue, will parties flock to fed ct?

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7
Q

In which areas are federal courts free to make up federal common law?

A

Recall: Erie means there is not general federal common law… but there are some areas of fed common law.

  • International relations
  • Admiralty
  • Disputes between states
  • The right to sue a federal officer for violating one’s federal rights

Also note: FCL governs for preclusion issues (but in diversity cases, FCL follows state preclusion law)

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8
Q

What is venue?

A

SMJX tells us when we can take a case to fed.

Venue tells us where to bring it – i.e., in which federal court to bring it

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9
Q

Where is venue proper?

A

When a cases is initially filed in federal court, P may lay venue in any district where…

1) All Ds reside* (residential venue)

OR

2) A substantial part of the claim arose or a substantial part of the property involved in the suit is located (transactional venue)

  • Note one exception to (1): When Ds reside in different districts of the same state, P can lay venue against all of them in the district where any one of them resides
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10
Q

Do venue provisions apply if the case was removed from state to federal court?

A

No, for removed cases, venue is in the federal district embracing the state court where the action was filed.

(The regular venue rules are for cases initially filed in federal court)

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11
Q

Does it matter where P resides for purposes of determining where it is proper to lay venue?

A

No!

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12
Q

How do the venue rules differ for diversity vs. federal question cases?

A

They’re the same!

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13
Q

Where is venue proper if D resides outside the U.S.?

A

Venue is proper in any federal district court. BUT if another D does reside in the U.S., venue must also be proper as to her.

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14
Q

Where does a (human) person “reside” for venue purposes?

A

Where she is domiciled

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15
Q

Where does a business “reside” for venue purposes?

A

A business (e.g., corporation or unincorporated association) resides in all districts in which it is subject to personal jurisdiction for the case.*

  • Check where that is and add to card!
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16
Q

Where can claims arise for purposes of transactional venue?

A

A substantial part of the claim can arise in more than one district!

Ex:a substantial part of a tort claim can arise where product manufactured AND where P was injured. Etc.

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17
Q

How / when can there be a transfer of venue?

A

Transfer moves a case from one trial court to another in the same judicial system

So, a federal court can transfer case to another federal district court but NOT to a state court.

The transferee court must be a proper venue and have PJx over D. (Generally this must be true without waiver by D).

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18
Q

What happens if venue is improper?

A

Court may transfer in the interest of justice OR dismiss the case. (Usually court will transfer if possible.)

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19
Q

When a federal court transfers a diversity case because original venue was improper, which law applies?

A

The transferee court applies its own choice of law rules (i.e., the choice of law rules of the state in which it sits), NOT the choice of law rules of the transferor court.

*Rationale: P doesn’t get to benefit from filing in improper forum

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20
Q

When does Forum Non Conveniens apply?

A

Like venue, it applies when another court is the center of gravity of a case… Here, however, the court cannot transfer the case to that court b/c it is in another judicial system. So the court invoking FNC will stay or dismiss the case—the idea being P will then sue in the other court.

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21
Q

What factors are considered in determining whether to invoke FNC?

A

All the same public and private factors as transfer of venue (including valid forum selection clause) PLUS the other court must be available and “adequate.”

Ordinarily, forum will be adequate unless P can get no remedy there.

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22
Q

A complaint must contain….

A
  1. Statement of grounds of SMJx
  2. Short and plain statement of the claim showing P is entitled to relief

AND

  1. Demand for relief sought (damages, injunction, declaratory relief, etc)
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23
Q

What level of detail is required in a complaint?

A

P must please sufficient facts to support a plausible claim.

Determining plausibility req’s judge to use her own experience and common sense.

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24
Q

How does D challenge the complaint?

A

Make a Rule 12(b)(6) motion to dismiss for failure to state a claim

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25
Q

In what kinds of cases are there special pleading requirements?

A

Fraud, mistake, and special damages claims must be pleaded with particularity / specificity (more detail)

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26
Q

How must D respond to a complaint?

A

Rule 12:
(1) by motion OR
(2) by answer

… within 21 days of being served with process (to avoid default)

If service was waived, respond within 60 days of P mailing the waiver form

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27
Q

Motions addressing issues of form

A

12(e) - motion for more definite statement (complaint so vague / ambiguous that D cannot respond) – must make before answering

12(f) motion to strike (remove redundant / immaterial things from a pleading)

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28
Q

Which Rule 12(b) defenses can be waived if not asserted in the first response?

A
  1. Lack of PJx
  2. Improper venue
  3. Improper process (problem w/ papers)
  4. Improper service of process
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29
Q

Which Rule 12(b) defenses can be raised later even if not included in the first response?

A
  1. Failure to state a claim (before or at trial)
  2. Failure to join an indispensable party (before or at trial)
  3. Lack of SMJx (raise any time)
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30
Q

What must D do if Rule 12 motion is denied?

A

Serve her answer to the complaint no later than 14 days after notice of denial of the Rule 12 motion.

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31
Q

What does D do in the answer?

A

a. Respond to allegations in the complaint

b. Raise affirmative defenses

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32
Q

What happens if an allegation in the complaint is not denied?

A

Failure to deny an allegation is an admission (except as to the amount of damages)

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33
Q

In responding the complaint, D may…

A
  1. Admit some/all of the allegations
  2. Deny some/all of the allegations
  3. State she has insufficient knowledge to admit/deny some/all of the allegations
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34
Q

What affirmative defenses may D raise in the answer?

A

Classic examples:
-Statute of limitations
-Statute of Frauds
-Res judicata
-Self-defense
-Etc.

Also…
-All Rule 12(b) defenses can be pleaded as affirmative defenses

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35
Q

Effect of D raising affirmative defense in the answer?

A

P need not respond — the allegations in the answer are deemed denied.

36
Q

When is there a right to amend pleadings?

A

a. Plaintiff - one as of course (no later than 21 days after D served her first Rule 12 response)

b. Defendant - one as of course (no later than 21 days of serving it)

NOTE: If D’s first response was an answer in which he forgot to raise waivable defenses or affirmative defenses, he has right to amend answer to included these.

37
Q

How to amend pleading after “right to amend” has expired?

A

Amending party must seek leave of the court (or get written consent of opposing parties).

Court will grant if “justice so requires.” Factors:
- Length of delay
- Prejudice to other party
- Futility of amendment

38
Q

What happens when evidence at trial does not match what was pleaded?

A

If other party fails to object to this “variance” at trial, party introducing this evidence may move to amend the complaint to conform to the evidence.

39
Q

How to amend after statute of limitations has run to join a claim not already asserted?

A

Amended pleading relates back if the pleading concerns same conduct, transaction , or occurrence as the original pleading.

Treat amended pleading as if filed when original was filed so it can avoid SOL problems…

40
Q

How to amend after statute of limitations has run to change a defendant?

A

Amendment will relate back if:

1) It concerns same conduct, transaction, or occurrence as the original

2) D had knowledge of the case such that he will be able to avoid prejudice

AND

3) D knew or should have known that, but for a mistake, she would have been named originally

The knowledge ref’d in 2-3 must have come within period for service of process (90 days after filing of complaint)

TLDR: this applies when P sued wrong D first, but the right D knew about it

41
Q

How to set forth things that happened after pleadings were filed?

A

File a supplemental pleading. Note: no right to file. Must make a motion - granting is within discretion of the trial court

42
Q

What does lawyer certify when she signs documents?

A

To the best of her knowledge/belief, after reasonable inquire:

  • The paper is not for an improper purpose
  • The legal contentions are warranted by law or a non-frivolous argument for a law change AND
  • The factual contentions and denial of factual contentions have evidentiary support or are likely to after further investigation.

(This is a continuing certification – i.e., every time party present a position to the court, she certifies this…)

43
Q

Who can Rule 11 sanctions be imposed on?

A

Party, lawyer, and/or lawyer’s firm

As general rule, law firm is jointly responsible with its attorney who violates Rule 11.

44
Q

What happens after a party violates Rule 11?

A

Opposing party cannot immediately file motion for sanctions. Must serve motion on other parties but can’t file with the court yet. Party in violation has a “safe harbor” of 21 days in which to fix problem and avoid sanctions. If she doesn’t then motion can be filed with the court.

45
Q

What types of Rule 11 sanctions can be imposed?

A
  • Non-monetary (e.g., requiring lawyer to attend professionalism classes)
  • Monetary (often paid to court, not opposing party)
46
Q

In general, what must be true for joinder of parties or claims to be proper?

A
  1. Joinder must be allowed under FRCP

AND

  1. There must be SMJx over the case
47
Q

In general, how can plaintiff join claims?

A

Under FRCP, P (or anyone asserting a claim) may join additional claim she has against an adverse party, even if the additional claim is unrelated to the original claim.

BUT NOTE: There MUST be SMJx over that claim too (which is frequently the bigger question!)

48
Q

When can there be multiple Ps or Ds?

A

Claims by multiple Ps against multiple D’s must:

  1. Arise from the same “transaction or occurrence” AND
  2. Raise at least one common question of law or fact.
49
Q

When can an “absentee” party be forced to join the case?

A

(Usually on motion by D…)

Three questions:
1. Is the absentee necessary / required?

  1. If yes, can the absentee be joined?

AND

  1. If the absentee can’t be joined, can the case proceed without them?
50
Q

When is an absentee party “necessary” or “required”?

A
  • Without the absentee court cannot accord complete relief among the parties
  • Absentee’s interest may be harmed if she’s not joined (most common)

OR

  • Absentee claims an interest that subjects a party (usually D) to a risk of multiple obligations
  • NOTE: joint tortfeasors are never necessary
51
Q

If an absentee is “necessary”, when joinder “feasible”?

A

If…

  1. There is PJx over the absentee

AND

  1. There will be SMJx over the claim by / against the absentee

(In deciding whether claim invokes diversity, court “aligns” absentee as a P or D based on the absentee’s interest)

If joiner is feasible. absentee is simply joined to the case.

52
Q

What happens if an absentee cannot be joined?

A

Court must decide whether to proceed without him or dismiss the entire case…

Factors:
- Is there an alternative forum available?
- What’s the actual likelihood of harm to the absentee?
- Can the court shape relief to avoid that harm to the absentee?

If court dismisses case rather than proceed without absentee, he’s called “indispensable”

53
Q

Types of counterclaims?

A

Counterclaim = claim against an opposing party

(1) Compulsory
counterclaim

(2) Permissive Counterclaims

54
Q

What is a compulsory counterclaim?

A

Counterclaim that arises from the same T/O as P’s claim

  • Unless counterclaimant has already filed claim in another case, must file the compulsory counterclaim in pending case or claim is waved

(THIS IS THE ONLY COMPULSORY CLAIM IN FED COURT!)

CHECK: SMJx over CCC

55
Q

What is permissive counterclaim?

A

Counterclaim that does NOT arise from same T/O as P’s claim

Permissive means party is not required to file it in this case and can sue on the claim in a separate case

CHECK: SMJx over PCC

56
Q

What is a crossclaim?

A

Claim against a co-party

  • Must arise from same T/O as underlying action
  • Not compulsory, can be asserted in another case
57
Q

What is impleader?

A
  • Defending party (usually D) brings in a new party. As with impleader claim, the party bringing the claim is called a third-party plaintiff (TPP) & new party is called a third-party defendant (TPD)

> > Used to shift to TPD all or part of the liability D (TPP) will owe to P

LOOK FOR: claims of indemnity or contribution

NOTE: Impleader is PERMISSIVE (need not bring in the current case)

58
Q

What are indemnity and contribution?

A

Indemnity = shifts liability completely (TPD must cover full claim)

Contribution = shifts liability pro-rata (TPD must cover pro-rate portion of the claim)

(Comes up with impleader)

59
Q

How to implead a third-party defendant into the case?

A

(1) File a third party complaint AND

(2) Have that complain formally served on TPD

(Right to implead within 14 days of serving an answer, after which court permission is needed)

60
Q

Intervention

A

Nonparty absentee “intervenes” (brings herself into the case) as either a P to assert claim or D to defend the case

Court can realign the intervening party if she came in on the “wrong” side

Two kinds:
1. Intervention of right
2. Permissive intervention

Always need to assess SMJx!
» Note: A claim by an intervenor P in a diversity case is a claim by a P, so limitation on supplemental jx may apply

61
Q

When can an absentee intervene “of right”?

A

Absentee’s interest may be harmed if she’s not joined AND that interest is not adequately rep’d by the current parties

(basically the same test as one of the tests for necessary parties)

Always assess SMJx!

62
Q

When can an absentee “permissively” intervene?

A

Absentee’s claim / defense and the pending case have at least one common Q of law or fact.

Court has discretion to allow… usually will allow unless it causes delay or prejudice to someone.

Always assess SMJx

63
Q

Interpleador

A

Applies if separate actions might result in double liability against a stakeholder

Interpleador suit allows a person / stakeholder to require 2+ adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it

Two kinds:
1. Rule 22 interpleador - Need complete diversity b/w stakeholder and all adverse clai mants and >75K AIC OR a federal Q claim)

  1. Statutory (1335) interpeader
    - Only need diversity b/w any two contending claimants and $500 AIC
64
Q

Prerequisites for bringing a class action?

A

A. Numerosity
- Too many class members for practicable joinder

B. Commonality
- Some issue in common to all class members such that resolution of the issue will generate answers for everyone in one stroke

C. Typicality
- Class rep’s claims are typical of the claims of the class

D. Representative Adequate
- Class rep will fairly and adequately represent the class

65
Q

Types of class actions?

A

Type 1 (“Prejudice”)

Type 2 (“Injunctive or Declaratory Relief”)

Type 3 (“Common Question” or Damages”)

66
Q

Type 1 (“Prejudice”) class action

A

Class treatment necessary to avoid harm (prejudice) either to class members or the non-class party

(RARE)

67
Q

Type 2 (“Injunctive or Declaratory Relief”) class action

A

Seeks injunction or decl. judgment b/c the D treated the class members alike

Ps in Type 2 CA normally cannot seek damages

68
Q

Type 3 (“Common Q” or “Damages”) class action

A

(1) Common q’s must predominate over individual q’s

(2) Class action must be a superior method to handle the dispute

Note: frequently used for mass torts

(Most likely CA to see on the bar)

69
Q

Certification of class actions

A

Rep’s complaint will ay “class action” but not technically a CA until court certifies…

Court must:
1. define the class and class claims, issues, or defenses

AND

  1. appoint class counsel, who must fairly and adequately rep the interests of the class

(Losing party in certification motion can seek appellate review at discretion of COA)

70
Q

Required notice for class actions

A

In Type 3 (Damages) CA, court must notify class members that they are in a class. Notice (paid for by class rep) must be individual (usually mail) to all reasonably identifiable class members.

Notice must tell class members various things, including that they:
- can opt out
- will be bound by judgment if they don’t opt out
- can enter a special appearance through counsel

NOTE: this type of notice not required in Types 1 & 2 CA’s

71
Q

Right to opt out of class actions?

A

No right to opt out of Type 1 or Type 2 class actions.

All class members bound by judgment unless it’s a Type 3 CA and they opted out

72
Q

How to settle class actions?

A

Parties can settle / dismiss only with court approval

In all 3 types, court must notice class members to get their feedback on whether should be settled / dismissed.

If Type 3, court also might refuse to approve settlement unless members are given second chance to opt out

73
Q

When is there SMJx in class actions?

A

If CA asserts rights under federal law, FQ jx may be used.

If diversity jx, only the citizenship of the class rep is considered (and her claim must be >75K). Claims of other class members are ignored.
- SO: as long as rep’s claim meets diversity req’s, CA may use diversity jx

74
Q

Class Action Fairness Act (CAFA)

A

CADFA grants SMJx separare from diversity of citizenship jx…

Federal court can hear a CA if…
- 100+ members
- ANY class member (not just rep) is of diverse citizenship from ANY defendant
- Aggregated claims of the class >$5 million

ALSO: any one D (even in-state D!) may remove the case from state to federal court

75
Q

Initial required disclosures

A

Within 13 days of Rule 26(f) conference, each party must disclose:

1) ID’s of persons with discoverable info that the party may use to support claims / defenses (and topics on which they have discoverable info)

2) Documents and tangible things that party may use to support her claims / defenses
- includes photos, records, videos, ESI
- copies / descriptions of documents may suffice
- note: must be in party’s custody / control for disclosure to be req’d

3) Computation of relief and supporting documents / ESI
- If claiming monetary relief, must provide computation supported by docs / ESI of amount sought

4) Insurance coverage
- any insurance that might cover all or part of the judgment (even though existence of coverage probably not admissible at trial)

76
Q

Required disclosures about an expert witness

A

Later in the case (when directed by court), parties must ID expert witnesses who may provide (opinion) testimony at trial
- Note: Facts known and opinions held by consulting experts = generally not discoverable w/out “exceptional circumstances”

Written report prepared by testifying EW’s must include:
- Opinions EW will express
- Bases for opinions
- Facts used to form opinions
- EW’s qualifications
- How much EW is being paid

(Earlier drafts of EW report + comm’s b/w lawyer and EW are work product)

After these disclosures, party may take deposition of EW. (Usually best to subpoena EW to compel attendance)

77
Q

Required pretrial disclosures

A

No later than 30 days before trial, parties must give detailed info about their trial evidence, including
- ID of W’s who will testify live or by deposition and documents
- ESI
- Other things they intend to introduce at trial

78
Q

Discovery tools (after initial disclosures made)

A

Note: Typically, without a court order / stipulation, can’t send discovery requests until after 26(f) conference

  • Depositions
  • Interrogatories
  • Request to produce
  • Medical exam (physical or mental)
  • Request for admission
79
Q

Depositions

A

…

80
Q

Interrogatories

A

…

81
Q

Request to produce

A

…

82
Q

Duty to supplement

A

If new facts come to light after responding to discovery that make a required disclosure,, interrogatory, or request for admission incomplete or incorrect, party MUST supplement her response to discovery.

83
Q

Scope of discovery

A

Standard: party can discover anything relevant to a claim or defense AND proportional to the needs of the case

Privilege: party can object to discovery on basis of evidentiary privilege (e.g. confidential atty-client comm’s)

Work product protection: material prepared in anticipation of litigation is protected. (In fed ct, this need not be created by a lawyer - could be party herself or any rep of a party like a private investigator)
- Qualified vs. absolute work product (if substantial need and undue hardship in obtaining materials in another way, can get “qualified work product”)
- Opinion work product cannot be discovered (mental impression, conclusions, opinions, or legal theories of the disclosing party)

Party’s own statement re: the case is discoverable (notwithstanding work product doctrine)

-

84
Q

Enforcement of discovery rules

A

Three ways court gets involved in discovery dispute:

  1. Party seeks protective order
    -
  2. ## Party responds, but not fully
  3. ## No response to discovery request

Sanctions against a party
- Less than a full response
- No response
- Merit sanctions
- Litigation hold

85
Q
A
86
Q
A

Federal Civil Procedure (1 decks)

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