Stages of Litigation Flashcards
What commences an action?
Filing the complaint (unless the state law says otherwise in a diversity case – e.g., that commencement for purposes of the statute of limitations occurs at service of process)
How is time counted for purposes of filing requirements etc in litigation?
A time periods expressed in days excludes the day of the triggering event and includes the last day of the period. Holidays and weekends are included unless the last day of the period falls on one, in which case the due date is the next workday. Add three days to any period if triggered by service by mail or leaving the paper with the clerk. On the exam, assume that the last day is not a weekend/holiday.
What time periods may never be extended?
renewed motions for judgment as a matter of law
motions to amend judgment
motions for a new trial
motion for relief from judgment
What must be stated in the complaint?
Grounds for subject matter jurisdiction
Short plain statement of the claim (pleading facts supporting a plausible claim more than mere speculation – higher bar than the old notice pleading standard)
Demand for relief sought
PJ and venue needn’t be alleged
What matters must be pleaded with special particularity?
Fraud, mistake, and special damages
What are a defendant’s two response options to a complaint and when must the defendant respond?
An answer or a motion within 21 days of service of process or, if process waived, 60 days from when the plaintiff mailed the waiver form
What are the grounds for a pre-answer motion to dismiss?
Rule 12(b)
(1) Lack of subject matter jurisdiction
(2) Lack of personal jurisdiction
(3) Improper venue
(4) Insufficiency of process
(5) Insufficiency of service of process
(6) failure to state a claim
(7) failure to join an indispensable party
Which defenses must be raised by the defendant the first time they file a motion or answer or they will be waived?
(2)-(5) – personal jurisdiction, improper venue, insufficiency of process and insufficiency of service of process
Which defenses may be made at any time prior to trial?
(6) and (7) – failure to state a claim and failure to join ani indispensable party
What defense may be raised at any time during litigation – even during appeal?
(1) Lack of subject-matter jurisdiction
Which motions raise issues of form?
12(e) – motion for a more definite statement (complaint is too vague for D to respond to)
12(f) – motion to strike (asks the court to remove redundant or immaterial things from pleadings/either party may move for)
If defendant does not make a pre-answer motion or makes one and is denied, what do they do?
Answer within 14 days of notice of denial
What is an answer and what must it contain?
A pleading.
Must (1) respond to the allegations of the complaint by admitting, denying or stating that you lack sufficient information to admit or deny (an effective denial). If you do not specifically deny, it will be an admission!
and (2) raise affirmative defenses adding new facts to the case. Includes all rule 12(b) defenses. If not raised in the answer may be deemed to be waived.
What must plaintiff do in response to the answer?
No requirement of reply unless court ordered. Defendant’s allegations are deemed denied.
What is the effect of failure to answer?
Default or default judgment
When can a plaintiff amend pleadings as of right?
Plaintiff has a one-time right to amend the complaint no later than 21 days after service of a pre-answer motion or responsive pleading
When can defendant amend pleadings as of right?
Defendant has a one-time right to amend the answer no later than 21 days after serving it. Any defenses not raised in the original answer may be asserted on the amendment and will not be deemed waived.
If there is no right to amend, what must parties do?
Seek leave of the court, which will grant leave to amend “if justice so requires,” looking at the delay, prejudice and potential futility of amendment
What is a variance?
Occurs when evidence at trial does not match pleadings.
If defendant did not object: court will allow retroactive amendment to match pleadings to conform to the evidence offered.
If defendant does object: evidence outside the scope of pleadings will be inadmissible because it is at variance with the pleadings.
What if an amendment to add a claim to a pleading occurs after the statute of limitations has run?
An amendment to a pleading that arises from the conduct, transaction, or occurrence that was set forth or attempted to be set forth in the original timely filed pleading will be deemed filed on the date that the original pleading was filed because it “relates back.” (relation back doctrine)
What if an amendment to a pleading seeks to add/change the adverse party after the running of the statute of limitations?
An amendment naming a new adverse party will relate back to the original timely filed pleading where it arises from the conduct transaction or occurrence and, within the time for service of process (90 days of filing), the new party had sufficient notice of the action (to avoid prejudice), and knew or should have known that but for a mistake of identity they would have been the named defendant originally.
What are supplemental pleadings?
Set forth facts occurring after the pleading is filed. Requires leave of court after a motion to file supplemental pleadings. Granted within court’s discretion.
Is there a right to supplemental pleadings?
No
What does Rule 11 require of all non-discovery filings?
When the lawyer or pro se party signs papers presented to the court, they certify to the best of their knowledge and belief that, after reasonable inquiry:
(1) the paper is not for an improper purpose
(2) its legal contentions are warranted by law or are a nonfrivolous argument for a change in the law
(3) the factual assertions have evidentiary support or are likely to after further investigation
(4) any denials are warranted on the evidence or reasonably based on a lack of information and belief
What is the consequence of a Rule 11 violation?
Party may move for sanctions or court may independently impose sanctions – which can be monetary or nonmonetary and imposed on the party, the lawyer, or the firm involved. EXCEPTION: no monetary sanctions on a party for violation of certification of legal contentions
When the other side violates Rule 11, what may you do?
Serve a motion for sanctions on the proponent, who gets a 21 day safe harbor period to correct/withdraw the offending document, after which point it may be filed with the court
Can a court raise Rule 11 violations sua sponte?
Yes – and there is no safe harbor period. Usually done by issuing order to show cause why sanctions should not be imposed, giving the party/attorney a chance to be heard
Can a party assert inconsistent claims or defenses?
Yes
What are joinder rules generally?
Define the scope of the case: how many parties and claims can be involved
When can plaintiff join claims against a defendant?
Plaintiff (and anyone asserting a claim) may join any additional claim against the defendant, even if unrelated to the original claim (all must have SMJ!)
What is compulsory joinder of parties generally?
Some parties are deemed necessary to an action and must be joined
What are the three questions in compulsory party joinder analysis?
(1) should the absentee party be joined?
(2) can they be joined?
(3) if they cannot be joined, should the action proceed?
When should an absentee be joined (are they a necessary party)?
(1) without the party, the court could not accord complete relief among the existing parties, or
(2) the absentee’s own interest in the subject matter will be harmed if decided without them, or
(3) the absentee’s interest could subject someone to the substantial risk of multiple or inconsistent obligations if not joined
When must an absentee be joined?
(1) the court has personal jurisdiction over them
(2) joining them will not undo diversity jurisdiction or venue
If the absentee cannot be joined, what should the court do?
Determine whether the action can still proceed without the necessary party by looking at
(1) the extent of prejudice to the absentee or parties
(2) the extend to which relief could be shaped to avoid this prejudice
(3) the adequacy of a judgment rendered without them
(4) whether the parties would have an adequate remedy in another forum if it is dismissed for nonjoinder
What is permissive party joinder?
Parties may join as plaintiffs or be joined as defendants whenever (1) some claim is made by each p and against each d arising out of the same series of occurrences or transactions and (2) there is a common question of fact or law (must have SMJ or Supp jd)
What is a counterclaim?
A counterclaim is a claim raised against the opposing party (usually by D against P, often as part of the answer. P must respond under Rule 12 within 21 days of service. 2 types – compulsory and permissive
What is a compulsory counterclaim?
Arises from the same transaction or occurrence as plaintiff’s original claim. Unless you have already filed the claim in a previous case, you must assert it in this case or forfeit the right to assert it at all. This is the ONLY compulsory claim. The requirement to assert it is triggered once defendant is required to answer (so if A sues B and B gets it dismissed under 12(b) without ever answering, the compulsory counterclaim has not been triggered)
What is a permissive counterclaim?
Does not arise from the same transaction and occurrence as P’s claim. May sue separately/not compulsory.
What is a crossclaim?
This is a claim against a co-party and must arise from the same transaction/occurrence as the underlying action but is not compulsory.
**once a cross claim is asserted, the 2 also become opposing parties and a claim back against the cross claimant becomes a counterclaim
What is impleader?
A defending party brings in a new party, the third-party defendant, to shift to third party defendant in whole or in part liability the defendant is found to owe to the plaintiff. (These are claims for indemnity and contribution)
Not compulsory.
Also called third party practice
Will always have SMJ because, even absent FQ or diversity, there will be supplemental jurisdiction because it arises from the same CNOF
What are the steps for impleading a third party defendant?
(1) D files a third party complaint against TPD
(2) serves process on TPD (must have PJ)
**and must always have SMJ, but P’s citizenship is irrelevant for determining diversity
Can a third party defendant assert a claim against the original plaintiff?
Yes, there’s no name for this, but the TPD may assert this claim if it arises from the same transaction or occurrence.
Does venue have to be proper for the third-party defendant?
No
Can the original defendant join any other claims she has against the third-party defendant?
Yes
Can the court sever a third party claim to be tried separately?
Yes, if that is just
What defenses may the third-party defendant assert?
Defenses to third-party liability in the impleader suit and defenses against the plaintiff in the original suit
What is intervention?
A non-party adds themselves to the ongoing case either as a plaintiff or defendant (subject to realignment by the court). Must be timely (determination in court’s discretion). Two types – of right and permissive.
What is intervention of right?
Intervention of right exists where the intervening party’s (1) has an interest in the subject matter of the action (2) that may be harmed if they are not joined and (3) the current parties do not adequately represent the intervenor’s rights. (This is basically one of the indispensable party tests)
Is there supplemental jurisdiction over claims by original plaintiffs against intervening defendants or claims by intervening plaintiffs?
No, it needs an independent basis of jurisdiction
What is permissive intervention?
Applicant/intervenor’s claim or defense ant the main action have a common question of fact or law even absent direct personal or pecuniary interest. Discretionary with court and requires independent basis for jurisdiction
What are three types of class action?
(1) Separate actions would create a risk of inconsistent results or impair the interests of unnamed parties. (e.g., successive individual suits could deplete a fund before all claimants got to court)
(2) Defendant’s actions or omission are applicable to the class as a whole and the class seeks appropriate declaratory/injunctive relief (e.g., employment discrimination)
(3) Common questions of law or fact predominate over individual issues and a class action is superior to other methods of adjudication (e.g., mass tort)
Besides presence of one of the three types of class-action situation, what makes a class action proper?
(1) numerosity (too many class members for practicable joinder)
(2) commonality (some issue in common to all class members such that a decision on the issue will singlehandedly generate answers for all)
(3) typicality (representative’s claims are typical of the class)
(4) adequacy (representative will fairly and adequately represent the class)
When may the court determine class action is inappropriate?
At any time though should do it as early as practicable
What factors go in to certification of a class action?
Interest of individual control, extent and nature of litigation elsewhere on the subject, desirability of joint trial, difficulties in managing a class action
Once a class action is certified, what does a court do?
Appoints class counsel, which must fairly and adequately represent the interests of the class
Is denial of class certification reviewable?
yes, discretion of court of appeals?
What notification requirements exist for class action?
In common question suits, but not the other 2 types of suit, notice to members of the class is required to allow them to opt out. The representative pays for notice to class members. Notice is optional in other 2 types. Must state the nature of the action, the definition of the class, the claims, issues and defenses, and the binding effect of a class judgment
What must a court do when certifying the class?
define the class, claims, issues and defenses
What is the effect of a judgment in a class action?
All members of a class will be bound except those members of a common question class action who notify the court that they do not wish to be bound
How is diversity determined in class action cases?
Only the citizenship of the named reps are taken into account for diversity purposes, and any named rep’s claim exceeding 75K works for AIC (rare to allow aggregation) and class members with smaller claims may use supplemental jurisdiction
What is required for dismissal or settlement of a class action?
Court approval In common question cases, the court may give a second opt out chance to parties Fairness hearing -- considering fair and adequate representation of the class, arms length settlement negotiation, adequacy of relief, effectiveness of distributing relief, attorneys' fees and whether the settlement treats all class members equitably
What actions does the Class Action Fairness Act allow federal courts to hear?
If:
(1) any class member is of diverse citizenship from any defendant
(2) the amount in controversy in the aggregate exceeds $5m
(3) there at least 100 members in the proposed class
(any defendant may individually remove to federal court even if a defendant is a citizen of the forum
What actions are excluded under CAFA?
If the primary defendants are states, state officials or other government entities against whom court may be foreclosed from ordering relief
Action solely involved federal securities laws or the internal affairs of a corporation based on state incorporation laws
What local considerations require mandatory decline of jurisdiction provided in CAFA?
1 -more than 2/3 of the proposed class are citizens of the state in which the action was filed 2 - a defendant from whom significant relief is sought is a citizen of that state 3 -principal injuries occurred in state where filed 4 - no similar class action was filed w/in previous 3 years
What local considerations give rise to discretionary decline of jurisdiction provided in CAFA?
1 - between 1/3 and 2/3 of the proposed class are citizens of the state in which the action was filed 2 - the primary defendants are also citizens of that state 3 - considering the factors: (1) involvement of matters of national interest, (2) whether the claims are governed by that state's law, (3) whether the state has a distinct nexus with the harm, class members or defendants
What are the requirements of a shareholder derivative suit?
Shareholders may sue to enforce the rights of a corporation that those in control may refuse to assert if:
(1) shareholder at the time of the complained of transaction (or received shares thereafter by operation of law)
(2) not a collusive effort to confer jurisdiction
(3) made a demand on directors (and on shareholders if required by state law) or gave reasons why they did not (particularity required here)
(4) fairly and adequately represents the class
When is venue proper in a derivative suit?
Wherever the corporation could have sued the same defendants
How is the jurisdictional amount determined in a derivative suit?
look to the corporation’s damages
What is interpleader?
Instituted by a person in the position of a stakeholder to require adverse claimants to determine which has the valid claim
What is Rule 22 interpleader?
Requires complete diversity between stakeholder and all adverse claimants and excess of 75K in issue or a federal question claim. Normal service and venue rules apply
What is Section 1335 interpleader?
only diversity between any two contending claimants and $500 in issue. Service may be nationwide v=and venue is proper where any claimant resides
What are the three types of required disclosure?
Initial
Expert testimony
Pre-trial
What is required in initial disclosures?
1 - names addresses and numbers of individuals likely to have discoverable info that the disclosing party might use to support its claims or defenses
2 - Documents, ESI and tangible items that may be used by the disclosing party to support its claims or defenses
3 - Computation of relief and supporting documents
4 - Insurance coverage - defendant must disclose any insurance that could cover part or all of a judgment
When must initial disclosures be made?
w/in 14 days after the 26(f) discovery conference unless a different time set by order or stipulation
What disclosures are required in relation to expert testimony?
identities of experts to be used at trial
Written report by expert witness including their opinions, the basis for their opinions and facts used to form them, their qualifications and payment as well as cases in which they have recently testified
When must expert testimony disclosure be made?
At a time directed by the court, but otherwise at least 90 days before trial
After disclosure, may a party depose an expert witness?
Yes, should subpoena
What are the required pretrial disclosures?
No later than 30 days before trial must give detailed info about trial evidence, including identity of witnesses testifying live or by deposition and real and documentary evidence to be used at trial
Evidence/witnesses used solely for impeachment need not be disclosed
14 day period for objections, waived if not made except for objections about irrelevance, prejudice or confusion
What is the format for producing electronically stored information?
Requesting party may specify format — disclosing party may object and court will determine if objection valid
If not specified — any form reasonably usable by requesting party
When must a party preserve ESI?
Once litigation is reasonably foreseeable
What are the remedies for failure to preserve ESI?
If it can be restored or adequately replaced, no further remedy necessary. If it cannot and there will prejudice to the discovering party, the court can shape relief to cure the prejudice
If the disclosing party acted with intent to deprive, the court may presume the evidence was unfavorable to them and give an adverse inference instruction or dismiss the case
What is the scope of disclosure and discovery?
Any relevant nonprivileged material proportional to the needs of the case
What is work product and when is it discoverable?
Work product of a party or their rep made in anticipation of litigation is not discoverable except on showing of substantial need and undue hardship in obtaining the materials in an alternative manner. If disclosure ordered, steps must be taken to exclude impressions, opinions and conclusions. Includes drafts by testifying experts
What are protective orders?
May be obtained to limit nature and scope of exam or terminate for abuse
What must a party do to withhold information they believe to be privileged or work product?
Make the claim expressly, describe the nature of info not disclosed so that other parties can assess the application of the privilege or work product doctrine. This doc is called a privilege log
What supplementation requirements exist on discovery?
Parties must supplement if they learn their disclosures were materially incomplete or incorrect
What are the types of discovery?
Depositions Interrogatories Production requests Medical exams Requests for admission
What is a subpoena duces tecum?
Subpoena to produce documents
Can you depose a non-party?
Yes, you should subpoena though
Unless a nonparty agrees, how far can she be required to travel for a deposition?
100 miles
What are the limits on depositions?
No more than 10 or 2 depositions of the same person without stipulation or court approval
Cannot exceed one day of 7 hours unless court orders or parties stipulate
How may depositions be used at trial
Impeachment
Anything if deponent is adverse party
Any purpose if unavailable
What are interrogatories?
Written questions to be answered in writing under oath
Who may be sent interrogatories?
Only parties (no non-parties)
How long does a party have to respond to interrogatories with answers or objections?
30 days from service, 33 if mailed
What is the maximum number of interrogatories you may send unless more are allowed by order or stipulation?
25 (each question = interrogatory)
Can a responding party provide records access in response to an interrogatory instead of an answer?
yes, if they can be found in business records and the burden of finding them would be the same for either party, the responding party can simply allow the requesting party access to the records
How may interrogatories be used at trial?
You cannot use your own
What are requests to produce?
Requests that the disclosing party make something available for review, copy, inspection, etc… Person must respond in writing within 30 days agreeing or objecting
Who may be subject to a request to produce?
Parties only (non parties can be subpoenaed though)
What is required to get a court-ordered medical examination?
(1) that the person’s health is in actual controversy
(2) good cause
Who may be ordered to undergo a medical exam?
Only parties or someone in party’s custody or legal control (this is narrow, not applicable to employees, e.g.)
Can the person subject to the medical exam request a copy of it?
Yes, may request but must on request in return produce to the other party all medical reports by their own doctors about that medical condition and waives dr/patient privilege wrt that condition
Who chooses the examiner for a court-ordered medical exam?
Party seeking the order
What is a request for admission and who may it be sent to?
Written request for someone to admit or deny certain things. Must respond either denying specifically or objecting w/in 30 days (or deemed to admit) May only say they do not know if they state that they made a reasonable inquiry and do not have enough info to admit/deny
What must accompany every discovery request and response?
Certification by counsel that the discovery request/response is warranted, not interposed for improper purpose, not unduly burdensome
What if a party fails to provide disclosure or discovery at all?
Merits sanctions —which can be an order establishing facts as true, striking pleadings, disallowing evidence, dismissing the case (if bad faith), entering default (if bad faith), or contempt (if in violation of a court order other than for a medical exam)
What if a party fails to obey a court’s discover order?
Can be held in content or other merits sanctions
What if a party fails to provide some information or fails to supplement (disclosure but not complete)?
Can move for an order compelling
Failure to provide info prevents party from using that information in a motion, hearing or at trial unless failure substantially justified or harmless
What if a party fails to admit a fact that tis the subject of a request for admission and the other side later proves the matter true?
May move that the party who failed to admit pay reasonable expenses including attorney’s fees in making that proof, unless the request was objectionable, the admission sought was not important, or the party had good reason not to admit (reasonable belief that it might prevail)
What if a party fails to attend their own deposition, or fails to respond to interrogatories or requests for inspection?
Requesting party may skip a motion to compel and apply for immediate sanctions certifying a good faith effort to resolve the discovery dispute
What is a Rule 26(f) conference?
Parties must confer to consider claims and settlements, initial disclosures, discovery plan, and possibility of settlement and make a written report to the court addressing timing and form of disclosures, subjects for which discovery may be needed, timing and limitations on discovery, relevant orders that may be required. Usually unless by court order or stipulation, a party may not seek discovery until after this conference except for a request to produce, which will be considered served on the day of the conference
What is a Rule 16(b) conference?
A scheduling conference after which the court will enter a scheduling order limiting time for jointer, motions and discovery, and may include dates for pretrial conferences, trial date and other appropriate matters. Cannot be modified except by leave of court showing good cause
What are pre-trial conferences?
Additional conferences may be held to expedite trial or foster settlement. Final retrial conference may held to formulate a trial plan. Orders entered pursuant to the final pretrial conference may only be modified to prevent manifest injustice
What can the court do when parties fail to attend conferences?
broad range of sanctions
What is a temporary restraining order?
If irreparable injury will occur prior to a hearing on a preliminary injunction, a party can seek a TRO to preserve the status quo until the hearing. Usually must give notice to the adverse party
How long may a TRO last?
14 days. May be extended another 14 days. If extended beyond the initial 28 days, it becomes a preliminary injunction
What is required to obtain a TRO ex parte?
(1) Moving party must state specific facts in a verified complaint or affidavit specifying the immediate and irreparable harm they will suffer absent the TRO
(2) certification in writing of efforts made to notice adverse party or reasons why notice should not be required
(3) security to pay for damages if restraint later found to be wrongful
What is a preliminary injunction?
Meant to preserve status quo before trial on the merits
What is required to obtain a preliminary injunction?
Burden on applicant to show
(1) likelihood of irreparable harm
(2) likelihood of winning on the merits
(3) balance of hardship in their favor
(4) injunction is in the public interest
Will be denied if the moving party has an adequate remedy at law
What are provisional remedies?
Pretrial seizure of property for purpose of securing satisfaction of a judgment that may be entered
Procedure variable and governed by state law
Usually requires prima facie case on underlying claim and likelihood that property will be unavailable after trial
What is garnishment?
Court order directing that money or property in a 3rd party’s hands be seized
What is attachment?
Process by which another’s property is seized in accordance with a judicial order or writ for purposes of securing a judgment (Like garnishment but in the person’s possession, not a third party’s)
What is replevin?
Plaintiff takes possession of and holds disputed property during lawsuit
What can a defendant do if a court issues a TRO?
Move to dissolve
Is a ruling granting or denying a TRO appealable as of right?
no
Is there a right to an injunction?
no
If the court grants a TRO or a preliminary injunction, what must the applicant do?
post a bond to cover the other side’s costs/damages if the restraint turns out to be wrongful
What must a court do when granting or denying a preliminary injunction?
Make specific findings of fact and separate conclusions of law (not required for TROs)
Is a ruling granting or denying a preliminary injunction appealable as of right?
yes
What is a motion for voluntary dismissal?
If the plaintiff wants to withdraw, they can move for voluntary dismissal at any time, which the court has discretion to grant.
When does plaintiff have a right to voluntary dismissal?
Right to voluntary dismissal by filing a notice of dismissal before the defendant either serves an answer or moves for summary judgment
When can a plaintiff get the case voluntarily dismissed without prejudice?
If they file a timely notice of dismissal but can only get it dismissed without prejudice once
When can plaintiff obtain a default?
If the defendant does not respond to the complaint within 21 days of service of process or 60 days of mailing waiver
What is a default?
A notation by the court clerk on the docket of default
What must plaintiff show to get an entry of default?
Must request entry of default and demonstrate that the defendant failed to respond in time
What is the effect of an entry of default?
Cuts off defendant’s right to respond. D can respond by motion or answer at any time Prior to the entry of default even if more than 21 days past service
What is a default judgment?
Entitles plaintiff to recovery (which an entry of default does not do)
When can the clerk of court enter a default judgment?
(1) defendant has not appeared/responded at all
(2) defendant is not a minor or incompetent
(3) the claimant gives an affidavit of the sum owed
(4) the claim is for a sum certain
If these not met, must apply to the court itself
Must the judge grant a default judgment?
no. holds hearing and has discretion
Does the defendant get notice of a default judgment hearing?
Only if the defendant ever appeared in the case
What relief may plaintiff obtain in a default judgment?
Cannot exceed the claim
What must a defendant show to set aside a default or a default judgment?
Good cause
A viable defense
What standard is applied when assessing a motion for dismiss for failure to state a claim?
Assuming all the facts in the complaint are true, have they stated a plausible claim for relief on the face of the complaint
Does a judge look at evidence in assessing a 12(b)(6) motion?
No – face of the complaint
What is a 12(b)(6) motion called if made after the defendant has answered?
motion for judgment on the pleadings. same analysis
What must the moving party show in a motion for summary judgment?
No genuine dispute of material fact
Entitled to judgment as a matter of law
Does the court have to grant MSJ if the standard is met?
no – it’s discretionary
Does the court look at evidence on an MSJ?
Yes, in the light most favorable to the nonmoving party
What evidence is usually proffered on an MSJ?
Affidavits/declarations/deposition testimony/interrogatories (under oath!)
Must be 1st hand knowledge
What must a nonmoving party show to get extra time to obtain evidence?
Affidavit or declaration stating what the evidence would be
When may a pleading be treated as evidence?
If verified
Does the judge assess credibility on an MSJ?
no
What is the scope of the right to jury trial in civil actions?
7A grants a right to jury trial in civil actions at law but not in equity
What if a jury trial contains both legal and equitable claims?
Jury will decide all facts underlying the damages claim but not the equitable claim. The jury issues will be tried first
What rules apply for trials in diversity cases?
Must permit a jury trial in any suit at common law even if the state court would deny a jury and follows federal rules for submitting issues of fact to the jury and disregards state law for determining sufficiency of evidence
State law for new trials based on excessiveness of jury verdict control s
How does a party exercise their right to a jury trial?
Must file a written demand with the court and serve it on the parties (may only be withdrawn by consent of all parties). Failure to demand within 14 days after filing of the last pleading directed to the jury-triable issue constitutes a waiver
What is the required jury size?
At least 6 no more than 12
Parties may stipulate to fewer than 6
What is a venire?
Summoned potential jurors
What is voir dire?
Questioning process to discover potential juror bias
What are the two kinds of challenges to jurors?
For cause (based on actual bias) and peremptory
How many motions can a party make to strike a juror for cause?
unlimited
How many peremptory challenges does a party get?
3 per side (not per party!)
What is required of peremptory challenges?
They must be used in a race and gender neutral manner
What is the process for determining jury instructions?
Parties submit proposed jury instructions to the judge at the close of evidence (court may say earlier). Prior to final argument, the court will inform the parties of the instructions it will give and which instructions it rejected. Parties must be allowed to make specific objections on the record and out of the jury is hearing
What is the effect of a failure to object to jury instructions before the jury is charged?
Cannot raise it in a post-trial motion or on appeal
What are the rules for jury deliberations?
May only take papers, exhibits in evidence and own notes into jury room
No experiments in jury room
No viewing property or places involved except by court order
Cannot communicate w/ nonjurors about the trial
What are the forms of jury verdicts?
General (who wins, any damages)
Special (answers specific questions but not win or loss)
General with written questions (both)
If the jury returns a general verdict, who enters the judgment?
Clerk of court
If a jury returns a special verdict or a general with questions, what happens?
Judge approves and clerk enters
If the jury makes inconsistent determinations, what happens?
If the answers are inconsistent with one another and/or one or more is inconsistent with the general verdict, a judgment cannot be entered and the judge either orders reconsideration or a new trial
What is the consequence of juror misconduct?
A new trial is appropriate if juror gave false testimony in voice dire or concealed material facts related to qualifications but verdict not set aside if misconduct harmless
When may actions be consolidated or separated?
Consolidate: if actions have a common q of law or fact
Separate: any claim, cross claim, counterclaim, or other issues when separation will foster judicial economy
What is an offer of judgment?
A party defending a claim or counterclaim may serve a formal offer to have a judgment entered against it on specified terms with costs — settling the case. If the claiming party rejects and the ultimate judgment is less favorable, they must pay the costs incurred after the offer made
What must a judge do in a bench trial?
Determine both facts (stated in the record) and separate conclusions of law and enter the judgment
What is a motion for judgment as a matter of law?
A/k/a directed verdict
On a motion for JMOL n a jury trial the judge will decide the case based on The evidence presented at trial and take it away from the jury where a reasonable jury would not have a legally sufficient basis to find for the non moving party viewing the evidence in the light most favorable to teh non moving party
When can you move for JMOL?
after the other side has been heard at trial
What is a renewed motion for JMOL?
If the jury returns a verdict which a reasonable jury could not have reached, a party that previously moved for JMOL may renew their motion
When may a renewed motion for JMOL be brought?
Within 28 days of entry of judgment
When may a renewed motion for JMOL be granted?
If the party moved for JMOL at the proper time on the same exact grounds and the jury issued a verdict that no reasonable jury could have reached
What is a motion for a new trial?
An error at trial requires a new trial or the verdict is against the weight of evidence.
When must a motion for a new trial be filed?
No later than 28 days after judgment
What must a judge do when an RJMOL and motion for a new trial are made together in the alternative?
If RJMOL and motion for new trial made together and renewed motion is granted, the court must rule hypothetically on the motion for a new trial so no remand will be required if reversed on appeal
When may a motion for a new trial be granted?
Non-harmless error requires a new trial
What is remittitur?
If the verdict is excessive, the court may allow the plaintiff to Choose between a lesser award and a new trial
What is additur?
If the award is inadequate, additur would allow the defendant a choice between a higher award and a new trial but this is not allowed in federal court. The only option would be a new trial
What is a motion for relief from the order of judgment?
Asking the court to set aside an order or judgment
What may a motion for relief from the order of judgment be based on?
Clerical error
Mistake, surprise, inadvertent neglect
Newly discovered evidence that could not have been discovered in time to move for a new trial with due diligence (but must have been in existence prior to judgment)
Fraud, misrepresentation of adverse party
Void judgment (like no SMJ)
Judgment satisfied, released, discharged
Prior judgment on which judgment is based reversed or vacated
Any other reason
When may a motion for relief from the order of judgment be brought?
For void judgment — reasonable time with no max
For clerical error — any time
For mistake, fraud, new evidence — reasonable time not more than a year
What is an independent action in equity to set aside the judgment?
Court in its discretion may entertain an independent action for relief from an order/judgment
Must show that they are likely to win if new action allowed (not limited by specific time limits on motion for relief from order of judgment but must be prompt)
Will be rejected if a previous motion to set aside the judgment was rejected on the merits
Are joint tortfeasors necessary parties?
never
What is the effect of a failure to move for RJMOL or a new trial?
Precluded from raising evidentiary sufficiency on appeal
If legal and equitable claims are joined in one case, how is the right to jury trial in damages claims applied?
Legal claim tried first to the jury then equitable to the court
If a procedure formerly available only in equity is now available under the federal rules for determining a legal claim, how may a jury be used?
Jury should try fact issues Examples — class actions and interpleader
If damages are part of an action seeking an injunction, what is the role for a jury?
Defendant cannot be denied jury on damages issues on the grounds that they are incidental to the equitable relief
What is alternative dispute resolution?
A process by which a neutral person resolves or assists parties in resolving their dispute
What does the Federal Arbitration Act govern?
Written arbitration agreements involving interstate or international commerce (pre-empts conflicting state law)
When is a written agreement to arbitrate a dispute valid and enforceable?
Is valid and enforceable unless a contractual ground for revocation exists
How may a contractual arbitration award be reviewed?
After it is rendered, a party can move to have it confirmed or vacated. If confirmed it will have the force of court judgment.
When may a contractual arbitration award be vacated?
Only on narrow statutory grounds like fraud or bias of the arbitrator, arbitrator’s refusal to delay proceedings for sufficient cause or arbitrator fails to follow the terms of the agreement in a manner that affected the outcome. Also if the award represents a manifest disregard for the law (Requires party to show the arbitrator knew the law and disregarded it).
When may a contractual arbitration award be modified?
to correct miscalculation, to modify an award beyond the scope of the agreement, to correct minor imperfections in form
What is judicial arbitration?
An arbitration under the auspices of the court to resolve the action without trial. This is voluntary at the federal level
What may a party do after the award in a judicial arbitration?
Reject it and request a trial de novo
When a trial proceeds after arbitration fails, can evidence of arbitration be introduced?
Generally no
What is mediation?
Use of a neutral person to assist in dispute resolution but the person does not have decision making power. May be made mandatory by local district rule
What does CAFA require of so-called “coupon settlements”?
Coupon settlements, in which class members receive coupons for further purchase from the defendant as their award, may only be approved by the court after a fairness hearing. Court may require unclaimed coupons be distributed to charity. Attorneys’ fees can be based either on the value of coupons actually redeemed or amount of time counsel reasonably expended on the action.
What protections does CAFA enforce regarding loss settlements for consumers?
Some members of class actions can occasionally lose money on the outcome because of the size of attorneys fees. A court may only approve such a settlement where it finds the nonmonetary benefits to the class substantially outweigh the Monetary loss
What protections does CAFA offer against geographic discrimination?
A court may not approve a settlement granting larger payouts for some class members solely because they are located closer to the court
What notification requirements does CAFA impose?
Settling defendants must give notice of proposed settlements to federal and state officials and final approval of the settlement may not be entered until 90 days after this notice. A class member demonstrating this notice did not occur may choose not to be bound
