Service of Process

Question 1

Service of Process

Answer 1

1) Must serve both the complaint + summons, if not, service isn’t proper
2) Must be served within 90 days of filing complaint
3) Anyone over 18 and not a party can serve

Question 2

How can Process be served? 2 options

Answer 2

a) Option 1 – Manner prescribed by state court in state where: (1) federal suit has been filed OR (2) where the D will be served

b) Option 2 – Manner specified by Federal Rule 4
i) If D = natural person, 4 options:
(1) Deliver to D himself (through 3rd party);
(2) Leave at D’s usual abode with a person of suitable age and discretion residing there;
(3) Serve D’s registered agent; or
(4) Mail with letter requesting D waive in-person service
(a) If D declines to waive, they become responsible for cost of personal service
ii) If D = corporation, partnership, or association, 3 options, serve process on:
(1) An officer;
(2) A managing agent or general agent; or
(3) Any other agent authorized by appointment or by law to receive service
(a) If law requires service by mail, must be by hand + mail

Question 3

Service and Due Process

Answer 3

D is entitled to notice of claims against them and an opportunity to respond to those claims

a) Notice through service: if served, basically have notice
i) Key is whether service reasonably calculated to inform D of action against them

b) Notice without service: may be a constitutional issue
i) Key is whether P took steps reasonably calculated to inform D of the action against them

Question 4

Responding to a Complaint: Answer

Answer 4

D admits or denies P’s allegations and lists defenses they might have
a) For each allegation, D should specifically admit or deny –> If failure to deny, it is deemed admitted

b) Defenses
i) No limit to how many, but common ones are statute of limitations, statute of frauds, assumption of risk
ii) Waiver: If defense not included in answer, generally it’s forfeited
(1) Exceptions: Following are not forfeited: Failure to state a claim upon which relief should be granted; failure to join necessary party; and lack of SMJ

c) Motion for more definite statement – Court will order pleading to be clarified if so vague that responding party cannot reasonably prepare a response
d) Motion to strike – Court can (on own or motion) order material stricken if complaint/answer contains redundant, immaterial or scandalous stuff
e) Motion to dismiss – Seeks dismissal, can be filed by any defending party

Question 5

Responding to Complaint: Timing of Responses

Answer 5

a) Initial response (answer or pre-answer motion)
i) If D was actually served with process –> 21 days to respond
ii) Service of process waived –> 60 days to respond

b) If D responds with 1 of above motions and it is denied –> D must file answer within 14 days of denial

Question 6

Note

Answer 6

Where a plaintiff relies on tag to subject the defendant to personal jurisdiction, the court’s PJ is both created and activated at the exact same moment.

Question 7

Provisional Relief: Preliminary Injunction

Answer 7

Need notice to adverse party and:

a) Likelihood of success on the merits +
b) Irreparable harm (ongoing / imminent harm, can’t be undone later) +
c) Balance of hardships (is harm to P if no injunction greater than harm to D if granted?) +
d) Public interest +
e) Payment of security

Question 8

Provisional Relief: Temporary Restraining Order

Answer 8

Similar to a PI – Same 5 part test as PI, but:
a) TRO can be ex parte – Can only be issued without notice if: (1) specific facts clearly show that immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition; and (2) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required

b) TROs expire 14 days after issuance
i) Can be extended for 14 days upon good cause shown

Question 9

Joinder of Claims: Multiple Claims

Answer 9

Brought by 1 P and 1 D (Rule 18)

a) P can bring all claims in 1 lawsuit, regardless of relatedness of claims
b) Not required to bring every claim but permitted to
i) If related to claim in suit, must bring, or likely precluded

Question 10

Joinder of Claims: Counterclaims

Answer 10

(Rule 13(a), (b)) – how a sued party returns fire
a) Permissive counterclaim = Claim does not arise out of the same transaction or occurrence underlying P’s claims against D –> D may file a permissive counterclaim but not required to do so

b) Compulsory counterclaim = Claim does arise out of same transaction or occurrence underlying P’s claim against D –> D must file or forfeit

Question 11

Joinder of Claims: Cross-Claims

Answer 11

(Rule 13(g)) – Filed by party against co-party (D1 v. D2)

a) Allowed only if arise from same transaction or occurrence underlying one of P’s claims
b) Once a related cross is filed, this is the anchor claim. Can then file unrelated cross-claims
c) Co-D can counterclaim the cross. Compulsory/permissive rules apply, does not have to be related

Question 12

Joinder of Parties: Permissive Joinder

Answer 12

(Rule 20) Multiple P’s can join 1 suit or multiple D’s can be sued in 1 suit, as long as:

a) Joined parties claim relief (if Ps) or face liability (if Ds) that arises out of the same transaction or occurrence; +
b) There will arise questions of law/fact common to joined parties

Question 13

Joinder of Parties: Mandatory Joinder

3 Steps

Answer 13

(Rule 19) could be forced to add a party to the suit

a) Step 1: Is the absent party necessary?
i) Necessary party = Has an interest that might be impaired if left out (suing for painting back, need guy w/ painting); complete relief cannot be issued in the party’s absence; or if current parties would be subject to inconsistent/duplicative liability
ii) If party is not necessary, no mandatory joinder

b) Step 2: If missing party is necessary, can she be joined?
i) Missing party can’t be joined in federal court if court lacks PJ over missing party, or adding would destroy SMJ by destroying diversity
(1) Yes –> Court should just join them, adjudicate case, skip Step 3
(2) No –> Proceed to Step 3

c) Step 3: If cannot be joined, are they indispensable?
i) Court will consider: extent of prejudice to missing party; can prejudice be lessened by shaping relief in a certain way; and if case is dismissed, whether P can find relief in another forum
(1) Yes –> Must dismiss the suit
(2) No –> Court can adjudicate case in party’s absence

Question 14

Joinder of Parties: Class Actions Generally

Answer 14

(Rule 23)

a) One person (representative) can litigate on behalf of class if:
i) A class can be formed, and
ii) The action brought is proper for resolution via class action

Question 15

Joinder of Parties: Class Actions 4 Requirements to form class

Answer 15

i) Numerosity: So many claimants that joinder is impractical
ii) Commonality: Questions of law or fact common to class
iii) Typicality: Claims are typical of class members ensuring the representative will have an incentive to litigate in ways to protect class
iv) Representativeness: Parties will fairly and adequately protect the interests of the class

Question 16

It is proper for resolution via class action if?

Answer 16

i) Separate actions would create risk of inconsistent judgments or judgments would impair nonparties from protecting interests
ii) Opposing party has acted in ways generally applicable to the class (not likely to work if seeking $$)
iii) Court finds that common questions of law or fact predominate over individualized questions, and a class action is superior to other methods for fair/efficient result

Question 17

Class Actions: Additional considerations

Answer 17

i) Court must have PJ over every D but only the named P
ii) Judgment binds all class members unless they opt out
iii) SMJ: When alleging state law violation, class can appear in federal court only if Ds and representative Ps (not all members) are completely diverse.
(1) I.e., If 100 members and seeks damages over $5M, diversity satisfied if any single member is diverse from any D

Question 18

Joinder of Parties: Interpleader Claims

Answer 18

(Rule 22) – Have the other 2 guys sue each other
a) Used when party fears it’ll face multiple/inconsistent liabilities (ex: wife/ex-wife fighting over insurance proceeds, insurance company files interpleader because if it pays 1, the other will sue)

Question 19

Joinder of Parties: Intervention

Answer 19

(Rule 24) – Non-party is interested, but has not been joined

a) Intervention of right: Must be permitted to intervene upon timely application when:
i) Claims an interest relating to subject matter of the action, and
ii) Without intervention, risk they might not be able to protect that interest

b) Permissive intervention: Upon timely application and at court’s discretion, may intervene with a claim or defense that shares with the main action a common question of law or fact

Question 20

Discovery: Mandatory Disclosures (What you get without asking)

Initial Disclosures

Answer 20

Initial disclosures: Within 14 days after a Rule 26 conference, must provide to all other parties:

i) The name/contact info of any witness that a party may use to support a claim or defense;
ii) Copies (or descriptions) of documents, electronically stored information (ESI), and tangible objects that the party may use to support its claim or defense;
iii) Computation of damages sought and supporting documents; and
iv) Copies of any insurance agreement that may require the insurer to pay

Question 21

Discovery: Mandatory Disclosures (What you get without asking)

Expert Disclosure

Answer 21

At least 90 days before trial, if planning to rely on expert testimony, must disclose name/contact info of expert and their final report which must include qualifications, opinion, and info relied on by expert

Question 22

Discovery: Mandatory Disclosures (What you get without asking)

Pretrial Disclosures

Answer 22

At least 30 days before trial, must provide:

i) List of witnesses they expect to call;
ii) Witnesses they may call if the need arises;
iii) List of witnesses whose testimony will be given through deposition or transcript; and
iv) List of documents or physical evidence they expect to present

Question 23

Discovery: Scope

Relevance

Answer 23

Relevance: Allowed discovery into any nonprivileged matter that is relevant to any claim or defense and proportional to the needs of the case
i) Relevant if likely to make any fact in dispute more or less likely to be true, regardless of whether info would be admissible at trial

Question 24

Discovery: Scope

Work Product

Answer 24

Even if relevant, may be protected work product

i) WP = document or tangible object created by party or attorney in anticipation of litigation (post- incident description of events)
ii) Exceptions:
(1) Party can always obtain statement it has made
(2) Can get WP if party has substantial need and can’t get it without substantial hardship

Question 25

Discovery: Scope

Privilege

Answer 25

Privileged matter is not discoverable
i) Attorney/client – Covers confidential communications between attorney and client for the purpose of obtaining or rendering legal advice

Question 26

Discovery: Scope

Undue Burden

Answer 26

Exists in the following circumstances:

i) Discovery is unreasonably cumulative or can be obtained from less burdensome source or in a less burdensome way
ii) Party has had ample opportunity to obtain information themselves
iii) Burden or expense of proposed discovery outweighs its benefits, considering nature of evidence, amount in controversy, and parties’ resources

Question 27

Discovery: Scope

Experts

Answer 27

i) Non-testifying expert – Assessing merits of case. No intention to call at trial  undiscoverable unless party has extraordinary need/no other way to obtain such information (rare)
ii) Testifying expert – Opinions held by those testifying are discoverable to a limited extent. Besides mandatory report, party can also get communications relating to:
(1) Compensation for expert’s study or testimony;
(2) Data provided by attorney to expert; or
(3) Any assumption attorney asked expert to make in opinion

Question 28

Discovery Methods:

Interrogatories

Answer 28

(Rule 33) = Questions submitted in writing to other party

i) Up to 25 Qs
ii) Can seek facts or contentions
iii) 30 days to respond, must be in writing and objections stated with specificity

Question 29

Discovery Methods:

Requests for admission

Answer 29

(Rule 36) = Request to admit truth or fact

i) If admitted, it’s in there for the trial
ii) 30 days to respond, may admit, deny, or state they have made a reasonable attempt to ascertain truth but lack info to admit / deny

Question 30

Discovery Methods:

Requests for Production

Answer 30

of docs, tangible items, or access to evidence

i) 30 days to respond, may object as outside scope of discovery
ii) If documents, responding party must provide them as they are maintained in usual course of business and label, but with electronically stored information (ESI), can provide copies

Question 31

Discovery Methods:

Requests for mental or physical examination

Answer 31

(Rule 35) = Used when party’s mental or physical state is at issue
i) Available only upon court order. When ordered, party must submit. Examiner must prepare report detailing exam and it is available to any requesting party

Question 32

Discovery Methods:

Depositions

Answer 32

(Rules 27, 30, 31)

i) May depose up to 10, but can get court order for more
ii) May use at a hearing or trial as long as opposing party had reasonable opportunity to be present and these rules are followed:
(1) Deposition of party/party’s designee can be used for any purpose
(2) Deposition of non-party can be used:
(a) to impeach deponent, or
(b) if deponent is unavailable (dead, disappearance) any purpose

Question 33

Discovery Methods:

Subpoenas

Answer 33

discovery from non-parties
i) Subpoenas duces tecum – Demand for documents
ii) Subpoenas ad testificatum – Demand for testimony
iii) Person served may object as outside scope of discovery or if it requires the person to travel
>100 miles from home or work

Question 34

Discovery: Enforcement

Answer 34

What to do if they ignore/don’t play by the rules:

a) If they sort of comply:
i) Motion to compel: made after movant has in good faith attempted to confer with resistor
(1) If granted –> movant gets fees/expenses for motion
(2) If denied –> non-movant may get fees but only if motion was not substantially justified
ii) Sanctions: (after motion to compel, still doesn’t comply)
(1) Court order declaring facts established for requesting party
(2) Court order prohibiting disobedient party from presenting certain claims or defenses
(3) Stay or dismissal of entire action, or
(4) Order of contempt

b) If they don’t comply at all: can immediately seek all sanctions above (except an order of contempt) – no need for motion to compel

Question 35

Pre-Trial Conference

Answer 35

o Rule 26(f) requires parties to meet and discuss the likely content of discovery in the case and draft a discovery plan.
o The plan must be submitted within 14 days of the conference.
o The conference must be held at least 21 days before a Rule 16(b) conference is held or order is issued.

Question 36

Rule 16(b) Conference and Order

Answer 36

o After a Rule 26(f) conference has been held, the court may order the parties to confer again to discuss the litigation and, in particular, the most efficient way for it to proceed and any possibilities for settlement.
o Rule 16(b) requires the court to issue a scheduling order. The scheduling order will dictate the schedule upon which the litigation will progress (e.g., periods within which parties can be added, motions made, etc.) and specify particular rules pertaining to discovery (e.g., the scope of discovery on particular issues).

Question 37

Pretrial Adjudication: Voluntary Dismissal

Answer 37

a) Sometimes, a claimant wants to drop the case. 3 Options:
i) Unilateral dismissal by filing notice any time before D has filed an answer or motion for summary judgment
ii) Stipulation of dismissal signed by all parties (settlement)
iii) Permission of the court. Generally will grant, but if D filed a counterclaim, court will not dismiss unless that claim can remain pending for independent adjudication

b) Dismissal with or without prejudice on future litigation
i) If notice, speculation, or court order specifies, bound by that
ii) If silent, presumed without prejudice in first dismissal, subsequent dismissals are presumed with prejudice

Question 38

Pretrial Adjudication: Involuntary Dismissals

Answer 38

If P fails to prosecute her case or refuses to comply with a court order or any of the FRCP, D can move to dismiss.
a) Operates as an adjudication on the merits (with prejudice) unless the order states otherwise or it’s a dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19

Question 39

Pretrial Adjudication:

Default Judgments 2 Steps

Answer 39

P properly serves D, D never responds. 2 Steps:

a) Entry of default: Clerk must enter a default
b) Entry of a default judgment: Issued after a default has been entered. How issued depends on nature of P’s claim:
i) Entry by clerk - If claim for a “sum certain” (or by math) and P requests the default judgment, clerk must enter and assess damages and costs against the D
ii) Entry by the court - If clerk can’t do it, court will, but P must ask for it
(1) If D initially appeared but failed later, court can issue only if D served with written notice of application for default 7 days before hearing
(2) Judge may hold hearings to calculate $$ damages or other matters

Question 40

Pretrial Adjudication: Motion to Dismiss Generally

Answer 40

Motion filed by defending party seeking dismissal of a claim against them
a) Must be filed before an answer is filed –> within 21 (where process served) or 60 days (where process waived)

Question 41

Pretrial Adjudication: Motion to Dismiss

Grounds (7)

Answer 41

i) Lack of SMJ;
ii) Lack of PJ;
iii) Improper venue;
iv) Insufficient process (constitutional claim);
v) Insufficient service of process (statutory claim);
vi) Failure to state claim upon which relief can be granted;
(1) Court assumes facts are 100% true, must be plausible, not probable (needs some facts)
vii) Failure to join indispensable party

Question 42

Pretrial Adjudication: Motion to Dismiss

Waiver

Answer 42

Waiver:

i) Must include certain defenses in first response (either motion to dismiss or answer) or they are forfeited:
(1) Lack of PJ;
(2) Improper venue;
(3) Failure of constitutional process;
(4) Failure of statutory process

ii) Must raise certain defenses any time before trial ends, or forfeited:
(1) Failure to state a claim upon which relief can be granted;
(2) Failure to join a necessary party

iii) Defense of lack of SMJ is never forfeited; may be raised anytime, even on appeal

Question 43

Pretrial Adjudication: Motion for Summary Judgment

Step 1

Answer 43

(SJ) = No genuine dispute of material fact, and movant is entitled to judgment as a matter of law

Step 1 – Assess only the arguments advanced by the movant –> have they shown non-movant lacks sufficient facts and/or law to prevail on claim/defense in question?

i) Two ways:
(1) Pointing out with citations to the record holes in opposing party’s claims or defenses; or
(2) Adducing new evidence to demonstrate that claim or defense cannot be true
ii) Assume witnesses tell truth – no credibility issues

Question 44

Pretrial Adjudication: Motion for Summary Judgment

Step 2

Answer 44

Step 2 – Examine non-movant’s response –> must bring evidence sufficient for reasonable jury to find in her favor on a claim or defense

i) Court will look only at non-movant’s evidence (won’t weight against moving party’s) and assume witnesses are truth tellers – no credibility issues
ii) If non-movant does not produce evidence, but just points to the pleadings, they’ll lose, but if pleadings are under oath (testimony about the pleadings), they are considered evidentiary
a) Motion for SJ may be made any time before 30 days after the close of discovery

Question 45

Trial: Trial by Jury

Generally

Answer 45

7th Amendment right to trial by jury in suits at common law, value > $20. Suits at common law have several considerations

Question 46

Trial: Trial by Jury

Nature of the Remedy

Answer 46

Right to trial by jury when seeking monetary relief (not injunctive).

If both, right to trial by jury for any issue of fact underlying a damages claim, even if resolution of that issue also supports injunctive relief

Question 47

Trial: Trial by Jury

Nature of the Claim

Answer 47

Need to be seeking damages AND claim has to be fairly analogized to a 1791 common law claim

Question 48

Trial: Trial by Jury

Demand for Trial by Jury

Answer 48

i) Any party can exercise. If 10 parties, just 1 has to want it
ii) No later than 14 days after the last pleading directed to the jury-eligible issue is filed, party exercising right must file with court and serve on other parties written demand for jury trial

Question 49

Trial: Trial by Jury

Jury Composition & Verdicts

Answer 49

Jury composition: 6-12 members

i) Voir dire
(1) Challenge for cause: Unlimited, unfit to serve but must articulate unfitness
(2) Peremptory challenge: Parties have 3, automatic dismissal, no justification needed unless the strikes give rise to gender/race discrimination

Jury verdicts: unless parties stipulate otherwise, must be unanimous

Question 50

Trial: Motion for Judgment as a Matter of Law

Answer 50

(Rule 50a)
During jury trial only, court may enter (on its own or upon motion), JML if:
i) Party against whom judgment is entered has been fully heard on the issue, and
ii) Party lacks sufficient evidence to prevail on issue necessary to claim or defense

Question 51

Post Trial Motions: Renewed motion for Judgment as a Matter of Law

Answer 51

(Rule 50b)

a) If a party filed a losing JML during trial, and then loses at trial, can try again
b) Must be filed within 28 days of entry of judgment (or discharge of the jury if the motion addresses a jury issue not decided by verdict)
c) In ruling on this new motion, the court may:
i) Allow the verdict to stand;
ii) Enter the opposite verdict; or
iii) Order a new trial (even if a motion for new trial was not made)

Question 52

Post Trial Motions: Motion for New Trial

Answer 52

a) Must file w/in 28 days of entry of judgment

b) Grounds:
i) Against the great weight of the evidence – Court can take into account comparative volume and credibility of evidence
ii) Excessive damages – Jury returns verdict that is “grossly excessive” or “shocks the conscience.” Court can also just choose an appropriate amount and let P choose between accepting that amount and doing a new trial.
iii) Procedural error or misconduct – only if:
(1) Error or misconduct likely affected result of trial, and
(2) Party objected to error when had opportunity to do so
(a) Ex: Wrongful exclusion of evidence, ex parte communication with judge, incorrect jury instructions
iv) Newly discovered evidence: could not with reasonable diligence been found before verdict and will likely change results, new evidence can’t be just for impeachment

Question 53

Post Trial Motions: Motion for Relief from Judgment

Answer 53

(Rule 60b) asks court to undo the judgment, set aside

a) Must be made within reasonable time, probably after learning of the grounds. First 3 grounds must not be made later than 1 year from final judgment
b) 6 Grounds:
i) Mistake, inadvertence, or excusable neglect;
ii) Newly discovered evidence;
iii) Fraud, misrepresentation or misconduct by party;
iv) Judgment is void: court lacked SMJ or PJ;
v) Judgment has been satisfied;
vi) Any other reason that justifies relief (catch-all) but can’t be used when any of above applies

Question 54

Appeals and Preclusion: Appellate Jurisdiction

Answer 54

a) Federal circuit court jurisdiction is limited, can hear only appeals seeking review of:
i) Final judgment
ii) Order pertaining to preliminary injunctive relief
(1) Can immediately appeal district court order granting or denying a preliminary injunction or TRO
iii) Order pertaining to certification of a class
iv) Order that has been certified by the district court for appeal; or
(1) May immediately appeal order that has been “certified” if 3 conditions met:
(a) Order involves a controlling question of law;
(b) Issue of law is one on which there is substantial difference of opinion; and
(c) Immediate appeal will materially advance the ultimate resolution of the action
v) A collateral order
(1) Extremely narrow. Allowed when 3 conditions met:
(a) Order pertains to matter unrelated to merits (hence “collateral”);
(b) Order conclusively decides a particular issue; and
(c) Delaying appeal until a final judgment has issued would effectively deny appellate review of the issue

Question 55

Appeals and Preclusion: Appellate Review

Answer 55

a) Standard of review
i) Questions of law –> Reviewed de novo – no deference to lower court, and addresses legal issue as if it has never been addressed
ii) Questions of fact –> Will affirm unless clearly erroneous – irrelevant whether the appellate judges might have decided the factual issue if they were trial judges or members of the jury – only inquiry is if “clearly” was wrong. High standard – rarely overturn lower findings of fact
iii) Inherently discretionary questions –> When trial courts have discretion, reviewed using deferential abuse of discretion standard

b) Harmless error rule: May affirm if there was error but it did not prejudice
c) Waiver: Can waive appeal if fail to challenge the decision at the time the lower court made it

Question 56

Appeals and Preclusion: AppellateProcedure

Answer 56

Appellant must file notice within 30 days of the judgment (or within 30 days of the order that is the subject of the appeal)

i) Exception: Where appeal is on class cert, only have 14 days
ii) If post-trial motion has been filed (renewed motion for JMOL, new trial, relief from judgment) and it is denied, a new 30-day period beings to run from the date of the denial. If granted, judgment is no longer final and no appeal is permissible unless the order can be certified or characterized as a collateral order

Question 57

Preclusion: Res Judicata

Answer 57

(claim preclusion) –> bars claimants from re-litigating a case they already lost.

a) Elements:
i) Between the same parties and those who are in privity with them;
ii) Arising out of the same transaction or occurrence underlying the prior suit; and
iii) That was determined on the merits by a court with proper subject-matter and personal jurisdiction.
(1) On the merits = involved an inquiry into the merits of P’s claim
(a) Judgment is not on the merits if it’s a dismissal for lack of PJ, SMJ, or venue
(b) Dismissal with prejudice = on the merits
iv) Relationship to compulsory counterclaim rule –> if D fails to bring a compulsory counterclaim in 1st suit, precluded from filing it as a P in a later suit

Question 58

Preclusion: Collateral Estoppel

Answer 58

(Issue preclusion) –> bars re-litigation of issues even with different parties.

a) Elements:
i) Must have been litigated and determined in the prior suit
ii) Issue must have been essential to the judgment
(1) Essential = if decided the opposite way would it have changed the result of the case
iii) Prior suit must have ended in a judgment on the merits
iv) Party against whom preclusion is asserted must have had full and fair opportunity, as well as incentive, to litigate the issue in the first suit