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95 Cards in this Set

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How do you satisfy the amount in controversy?
The federal court should find that it is “facially apparent” that the Complaint alleges an amount
that satisfies the required showing by a preponderance that Plaintiff is likely to recover an amount that exceeds
$75,000.

Can include: attorney's fees that are not contingency fees

CANNOT INCLUDE: interest or costs

Court may draw inferences from the facts in the Complaint.

D must show Plaintiff cannot recover the amount "to a legal certainty" in motion to dismiss for lack of 1332 based on insufficient JA.
what is the nerve center test?
” state in which a corporation’s “high level
officers direct, control, and coordinate the corporation’s activities,” which in practice “should normally be the
place where the corporation maintains its headquarters
Does a federal court have to use substantive state law in a diversity case where there is not statute but merely a judicial decision?
In the
Erie decision, the Supreme Court held that state judicial decisions on substantive law must be regarded as “rules
of decision” in the same way that state statutes and state constitutions are so regarded under the Rules of
Decision Act in diversity cases.
Defendant files a motion to dismiss and attaches an affidavit. What do you need to know?
First, the federal court should not have denied Defendant Eve’s Rule 12(b)(6) Motion to Dismiss, and instead
should have treated it as a Rule 56 Summary Judgment Motion in order to consider “matters outside the
pleadings,” namely, the expert’s affidavit. Second, the federal court should not have denied Defendant Eve’s
Motion without stating on the record the reasons for denying the motion, and without requiring Plaintiff Pat to
respond with a showing that there is a genuine factual dispute as to whether Defendant Eve worked on the
equipment that started the fire.
What to remember about summary judgment standard
t there is no “genuine dispute as to any
material fact” and that the Eve is “entitled to judgment as a matter of law

must cite to material in the record

Given the Defendant Eve’s reliance on an affidavit from her own expert witness, the federal court will require
her to show that the affidavit: 1) is “based on personal knowledge”; 2) describes “facts that would be admissible
in evidence”; and 3) shows “that the affiant . . . is competent to testify on the matters stated.”

Next, the federal court will analyze the submission of the Plaintiff Pat. As the non-movant, Pat must assert that
there is a genuine dispute as to a material fact. Pat also must cite to evidence in the record to support this
assertion

Given the requirement that the judge
must construe the facts in the light most favorable to the non-movant Plaintiff Pat, and considering the fact that
the judge cannot weigh either the credibility of witnesses or the conflicting evidence, Defendant Eve cannot
show that there is no genuine dispute as to an issue of material fact
What is the Mottley rule?
Under Mottley, D1 Will’s defense of compliance with federal noise regulations cannot
supply a federal question for §1331 SMJ because it is only a federal defense.
What is the one year bar in a removal situation?
r, the one-year bar to removal under §1446(c)
does not apply to federal question suits removed under §1331

only applies to 1332
list 7 steps Ds must take to remove a suit to federal court (1331)
1. all must consent
2.must file the Notice of Removal in federal court within 30 days of the
date when they received a copy of the “paper,” such as a pleading from which it “may first be ascertained” that the state court case was
removable
3. the Notice must provide a “short and plain statement” of the jurisdictional grounds for
removal
4. Defendants must sign the Notice pursuant to FRCP Rule 11, and must attach a
copy of all state court “process, pleadings, and orders” to the Notice
5. the Notice and attached documents must be filed in the federal district court in the
location that encompasses the location of the state court in which Plaintiff filed her suit
6. Plaintiff Pam must be served with a copy of the Notice and attached documents, along with a memo
explaining the reasons why the suit was removed
7. a copy of the Notice and attached documents, including a copy of the memo served on Plaintiff Pam,
must be filed promptly with the state court
What should you do when you want to remove a case, but there is lack of diversity but someone who is being sued should not really be a party
Defendants can remove the state court suit by Plaintiff Art to federal court and invoke the fraudulent joinder
doctrine when filing the Notice of Removal. The Defendants will be allowed to remove the suit if they can show
that Plaintiff Art has “no reasonable basis” for the “possibility” of recovery against non-diverse D3 Sal. The
federal court will assess their showing using the same type of standard used for a Rule 56 Motion
what is the defect in removal that requires you to look at the citizenship of the parties?
no defendant in a suit removed under §1332 may be a citizen of the forum state in
which the plaintiff filed suit. Here the removal of Plaintiff Art’s suit from the Louisiana state court is based on
§1332 and Defendant LBI is a Louisiana citizen
if there are 3 Ds in a lawsuit but only 2 have been served so far, can the first 2 remove without the consent of D3?
yes. “all defendants who have been properly joined and served must join in or
consent to the removal” of a suit from state court
Plaintiff files suit against D in federal court to determine whether his lease is invalid. D notes that if he loses, dozens of other similar leases he has with other people will be called into question. P is LA and D is TX and some of the owners are TX. what motion should he file?
Defendant can file a Motion to Dismiss the suit by Plaintiff. First, Defendant can show that the other dozen
owners of acres in the drilling unit are parties who are “required to be joined” under Rule 19(a). Second,
Defendant can show that their joinder is not “feasible” under Rule 19(b) because some of them are Texas
citizens who will destroy complete diversity under §1332 if joined as Plaintiffs. Third, Defendant can show that
the federal court should determine that the Plaintiff’s action should not proceed but should be dismissed in
accordance with the Rule 19(b) factors
Can a LA federal court exercise general or specific jurisdiction over a business owner who sells in all 50 states online but doesnt advertise in a particular one and who used to live in LA and still visits frequently but now lives in CO?
First, the federal court in Louisiana should not exercise general personal jurisdiction over Defendant based on
the contacts that exist with the state forum at the time of the filing of the Complaint. The Defendant’s
maintenance of an interactive website for the sale of goods does not establish general jurisdiction, even when
thousands of forum state customers have engaged in transactions with that website, according to Fifth Circuit Page 9 of 11
precedent. Moreover, the “minimum contacts” of the Defendant are not “continuous and systematic.”

Here the
Defendant has not lived in Louisiana for 27 years, and so his prior ten-year residence in the forum state is too
stale to serve as a minimum contact. Since moving to Colorado in 1985, Defendant has made only holiday visits
once a year to see his Louisiana relatives, and two-day tourist visits twice in the last five years. These contacts
are “casual” and “isolated” ones, and not the type of “continuous and systematic” contacts that are needed to
establish general personal jurisdiction.
Second, the federal court also should not exercise specific personal jurisdiction over Defendant because he did
not purposefully avail himself of the forum state. In the internet context, most federal courts require evidence of
purposeful targeting of internet customers in the forum state to find purposeful availment, and here that
evidence is absent because Defendant sold electrical switches online to customers like Plaintiff in all 50 states
“with no particular focus on any state” and with advertisements only in national trade publications. First, for
specific jurisdiction to be exercised, the Plaintiff’s claim must arise out of the contacts that Defendant has with
Louisiana. Here this threshold requirement is satisfied because Defendant made the online sale of the defective
switch to a Louisiana resident, who, in turn, put the switch into a lamp that was sold to the Louisiana
homeowner whose house was damaged by the fire caused by the defective switch. Therefore, the court must
consider whether Defendant “purposefully availed” himself of the forum state, whether Defendant derived
benefits from the forum State, and whether Defendant reasonably expects to be haled into court in the forum
state. In a product liability case not involving the internet, the McIntyre plurality defined “purposeful
availment” as “conduct purposefully directed at” the forum State, and here the Defendant did not engage in conduct “purposefully directed at” Louisiana. Two other justices in McIntyre emphasized that personal
jurisdiction cannot be established under pre-McIntyre precedents when there is no showing of the “regular”
flow or course of sales in the forum State, and no showing of “something more” than simply placing a product
“into the stream of commerce,” such as “special [forum-]state-related design, advertising, advice, or
marketing.” These showings cannot be made here. Similarly, Defendant did not derive benefits from Louisiana,
other than an unknown number of internet sales, and Defendant would not reasonably expect to be haled into
court into Louisiana.
P1(LA) v. D1(TX) and D2(LA) in federal court

Must judge dismiss the entire suit?
No, the federal court must dismiss only the plaintiff's claim against the non-diverse D2 as misjoined party under FRCP 21.
P1(LA) v. D1(TX) and D2(LA) in State court.

D1 and D2 join in filing a timely notice of removal in federal court. What must the fed court do with the removed suit?
remand the entire suit to state court as required by the removal statutes
P v. D in 1332 suit in LA fed court.

P's cause of action is based on State contract law

P and D disagree as to whether LA, AS or OK law applies

Choice of law rules vary in these states

Which state's choice of law rules should apply in federal court?
Under the Klaxon rule the federal court must apply the same choice of law rules that would be followed by the state supreme court of the forum state.

Here, the court must apply the same choice of law rules followed by the La supreme court which are found in the LA civil code
P v. D in federal La court

federal statute allows only 3 peremptory challenges while LA code allows 6. what rule applies in fed court?
When federal law proscribes a procedural rule for the federal courts, and that rule "directly conflicts" with a State procedural rule, the federal rule will govern in federal court.
P v. D in federal AK court under 1332

AK statute #1 allows punitive damages award against unlicensed mechanics

AK statute #2 says all claims for punitive damages must be decided by a judge

D would otherwise be entitled to a jury trial under federal law

Should the federal court apply either of these statutes?
1. the fed court should apply AK stat. 1 because under Erie and The Rules of Decision Act, a federal court must apply the substantive law of the state forum in a diversity suit and this statute provides a substantive law because it establishes a remedy

Also, there is no federal law that conflicts with statute # 1 and the statute must be applied in order to discourage forum shopping

2. The FC should NOT apply #2 because there is a direct conflict between the procedural rule requiring a judge and the federal 7th amendment right to a jury trial

According to BYRD, the policy expressed in the state rule does not outweigh the policy interest of the federal courts in maintaining an "essential characteristic of the federal court system" which is the jury trial procedure for determining damages as well as liability.

Moreover, the bench-trial only provision is codified in a separate statute that applies to all claims for punititive damages and therefore is not an integral part of the substantive law in #1 that establishes the liability of unlicensed mechanics.
2 requirements for domicile of a person
1. physical presence
2. intent to remain indefinitely


look to:
-voter registration
-paying taxes
-job
-driver's license
-car registration
What if evidence shows that Bob told his friends repeatedly that he intends "to never return to new york" - does that mean he is no longer domiciled there?
not necessarily. A person's intent to never return to the state of domicile does not cause the loss of domicile or citizenship in that state

that loss occurs only when a person gains a new state of domicile by acquiring the intent to remain indefinitely in another state
Explain the citizenship of illegal aliens, legal aliens, and LPRs
Any alien is a citizen or subject of a foreign state under Article III and 1332. Thus, an illegal alien from mexico is a citizen of mexico.

Similarly, if he entered legally, he is still a citizen of mexico until he obtains U.S. citizenship.

if an LPR is domiciled in the same state as the other party, there is NO diversity unless LPR is an additional party to a citizen of a different state.

Good: KS v. OH and LPR (KS)

Bad: KS v. LPR (KS)
What are the 2 scenarios in which an alien may appear as a party in suit under 1332?
1. LA v. Mexico (one party is a citizen and one party is a foreign citizen)

2. LA v. TX and Mexico
(citizens of diff states and foreign citizen is an additional party)
What are 2 scenarios where an alien may NOT appear as a party under 1332?
1. Germany v. Russia

2. Germany v. Russia AND Vermont

can't have state citizens as additional parties on one side
German P v. D inc. (Delaware) and (Italy)

okay under 1332?
No. congress has provided no jurisdiction for suits b/w citizens of foreign states
P (MI) v. D Inc. (Canada) and (MI)

1332 okay?
No. lack of complete diversity
1. P (LA) v. D1 insured (LA) and D2 insurer (Del & NY)

1332 okay in traditional suit?

2. P(la) v. D insurer (Del, NY)

1332 okay under direct action suit?
1. no, lack of complete diversity

2. no, because D will be deemed a citizen of Delaware, NY AND LA because that is the state of which the insured is a citizen.
What is the presumption about the amount in controversy in a complaint?
shall be deemed to be the sum demanded in good faith in the initial pleading

however this rule is inapplicable when state practice does not permit the plaintiff to make a demand for a specific sum OR when state practice permits recovery of damages in excess of the amount demanded

the operating rule is that the notice of removabl filed by D may assert the amount in controversy in either of these circumstances when plaintiff's initial pleading seeks a $ judgment or where intial pleading seeks nonmonetary relief

court must find by a preponderance of evidence that JA exceeds 75000 for removal
What is the rule for measuring the amount in controversy in Seller's suit against buyer for damages and enforcement of an installment contract?
The amount depends on the direct legal effect of the judgment under governing contract law.

That law may provide that either the direct legal effect of the judgment is the entire amount of the debt or only the amount of the past due payements

Two examples of suits in which the entire amount of the debt will be deemed the amount in controversy:

(1) P files suit to cancel contract for fraud

or

(2) there is an acceleration clause in the contract
Can a single P aggregate values of multiple claims against a single D?
Yes
Can a single P aggregate values of claims against multiple Ds?
no
Can multiple Ps aggregate the values of their claims against a single D when 1 plaintiff satifies the JA requirement?
Under 1332, no

exception: when multiple plaintiffs are claiming a single title or right and a common or undivided interest

Under 1367, yes under Exon-Mobil in these circumstances:

i. multiple Ps v. 1 D
ii. at least one P has a claim over 75,000; and
iii. complete diversity rule
iv. The suplemental rule that claims are so related that they form party of the same case or controversy
What is the Mottley well pleaded complaint rule
in order to invoke 1331 SMJ in the notice of removal, D must show that a question of federal law arises in the P's state court suit. The fact that D may raise a federal defense does not establish SMJ
What is the Merrell Dow Substantial Federal Question rule
A federal court may exercise 1331 SMJ only when a well-pleaded state law claim requires the decision of a substantial federal question

Cannot disturb the balance of federal and state responsibilities by federalizing a large number of state law tort claims
What should you know about the Federal Declaratory Judgment act?
It provides a remedy, but it does not provide SMJ. Thus, no 1331 suit exists for example in a suit to resolve a dispute about compliance with a state act because it raises no question that arises under federal law.
In order to join claims under rule 18, must the parties show the claims are related?
No because rule 18 allows a party to join as independent alternative claims as many claims as the party has against the opposing party
What showing is required by rule 20 for joinder of parties in the following situation:

P v. D1 (claim 1) and D2 (claim 2)
Ds may be joined in one action only when these two requirements are satisfied:

(1) plaintiffs assert against all Ds a right to relief arising out of the STO

(2) Plaintiffs show that a question of law or fact common to all defendants will arise in the action
What showing is required by rule 20 for joinder of parties in the following situation:

P1 (claim 1) and P2 (claim 2) v. D
1. all plaintiffs assert a claim to relief arising out of the STO

and

2. a question of law or fact common to all Ps will arise in the action
Expliain Rule 19 for joinder of indispensible party
Under 19(a) D can show that the non-party is a party who is required to be joined.

A required party:
(i) claims an interest relating to the subject of the action
(ii) is so situated that disposing of the action in their absence may leave an existing party subject to risk of incurring multuple or otherwise inconsistent obligations

Second, D can show joinder is not "feasible" if it would destroy the complete diversity required under 1332

Third, these factors support the conclusion that the action should not proceed among existing parties:
(a) judgment in RP's absence might prejudice D
(b) prejudice to D would not be lessened or avoided by measures that would prevent RP from bringing a second expensive lawsuit
(c) P can bring suit in state court against D in an action in which issues be resolved if RP is joined
Explain interpleader under 1335

under rule 22?
The person with multiple potential claims against him may bring a statutory interpleader action in federal court in which he will be the P stakeholder who has custody or possession of money or property and will name the other parties as adverse claimants who claim to be entitled to the funds.

The town will deposit the money into the registry of the court there to abide the judgment of the court and the court will determine the legal obligation of the P regarding the funds.

This statute provides BOTH remedy and SMJ for suits meeting the following requirements:

a. $500 or more in controversy
b. minimal diversity - one claimant must be diverse from only one other claimant
c. minimal venue - proper in any DC in which any claimant resides


Rule 22 requires an independent showing of 1332 SMJ
P(LA) v. D (Fla)

Claim 1 - ADEA
Claim 2 - (state law, $3,000)

supplemental jurisdiction?
Court will have supplemental J under 1367 if P can show that his state law claim 2 is "so related" to the original ADEA claim that they form the same case or controversy.

The "so related" test is the same as the CNOF test
What are the 4 instances in which a federal judge can decline to exercise 1367 supplemental jurisdiction over a state law claim?
1. when the claim raises a novel or complex issue of state law

2. when the claim substantially predominates over the claims over which the court has original jurisdiction

3. when the court has dismissed all claims over which it has original jurisdiction

4. in exceptional circumstances for other compelling reasons for declining jurisdiction
P (LA) v. D1 (FL)

Claim 1(ADEA) and Claim 2 (state law, $3000)

AND

P v. D2 (LA)

Claim (state law, $10,000)

SMJ over claim against D2?
under 1367 fed court may exercise supp J over claims that involve the joinder of additional parties

Court has original jurisdiction over C1 which will allow supp over C2 against D2

P must show that his state law tort claim 2 is "so related" to the original 1331 ADEA claim that they form part of the same CorC because they share CNOF

No SMJ under 1332 for lack of complete diversity and no JA
P (LA) v. D (FL)

Claim = state law claim for $100,000

P wants to amend to add D2 (LA)

Does FC have SMJ over new claim?
no - lack of complete diversity under 1332

can't rely on 1367 because original claim is based on 1332
What five claims qualify under 1367 for the status of "supplemental" claim in all cases no mater what source of SMJ was invoked for the original claim?
1. compulsory counterclaim under rule 13 (claim must arise of out STO of opposing party's claim)

2. cross claim under rule 13 (STO of original claim or counter claim)

3. impleader claim by defendant who brings a 3PD into the plaintiff's suit under rule 14

4. claim by an impleaded 3PD under rule 14 against P (STO that is subject matter of P's claim against D)

5. intervention of right claim under rule 24 brought by a defendant-intervener
Which two claims will qualify under 1367 ONLY when the original claim is based on 1331 SMJ?
1. the rule 14(a)(3) claim by a plaintiff against a 3PD (STO as claim against D)

2. Rule 24 intervention of right claim by a plaintiff-intervenor
What 2 claims is 1367 never available?
1. a permissive counterclaim

2. a permissive intervention
Even when a suit is not "properly removed" it may remain in federal court under 2 circumstances:
1. P fails to make a timely motion to remand the removed suit to state court on the grounds of a removal procedure defect

2. suit involves one of two types of SMJ defects that are governed by either the caterpillar rule or the fraudulent joinder doctrine
Two examples of procedural defects in 1332 SMJ suits
1. if D relies on 1332 and if any D is a citizen of the forum state in which the P's suit was filed, then the presence of a "forum state citizen" in the removed suit will create a procedural defect

2. if a non-removable suit becomes removable under 1332 on a date that is more than one year after the P filed suit, the removal of such suit creates a defect UNLESS
i) the dc finds P has acted in bad faith in order to prevent a D from removing the action
ii) an example of bad faith is when P deliberately failed to disclose the actual amt in controversy to prevent removal
What is the caterpillar rule?
Remand is not available for a defect in 1332 under 3 requirements:

1. federal court did not recognize the defect in diversity and

2. non-diverse party was subsequently dismissed so that the defect no longer existed when the trial began

3. judgment will be treated as jurisdictionally valid and remand may not be obtained
What is the "fraudulent joinder doctrine"
will prevent a P from obtaining remand when:

a. P's joinder of a non-diverse D creates 1332 defect in the state suit

and

b. D can show that there is no reasonable possibility for P's recovery agaisnt the non-diverse D

Then the removed suit will remain in FC after D files NoR
If a removed suit includes 1331 SMJ and also one or more claims not within the original or supplemental jurisdiction, then the court should
sever from the suit all claims with no basis for SMJ and remand the severed claims to the state court.
personal jurisdiction in a products liability case
1. if no minimum contacts, violation of due process (ask if they own property or sell products there)

2. even if foreseeable that product would make its way there, foreseeability factor alone is not sufficient - need purposeful availment and more than just placing a product in the stream of commerce (McIntyre case)


also look to 5 due process factors:

1. degree of burden on D
2. degree of convenience for P
3. interest of forum state in exercising jurisdiction over the claim
4. interstate efficiency considering location of witnesses/evidence
5. advancement of social policy, considering availabiltiy of other forums
Where is venue proper
1. where a substantial part of the events occurred

or

2. district in which D resides if 1 D

3. if multiple Ds and they all reside in 1 district, then that district is proper

Fallback option when the above is not availabe:

any district in which any D is subject to the court's PJ

(for example when events occur outside U.S.)
Where does an "entity" resident reside?
any FDC in which court has PJ because of minimum contacts with that DC

Special rule for corporations:

1. resides in any FDC in which it has minimum contacts as if the FDC were a separate state

2. if not, the district with the most significant contacts of the corporation
Where is venue when a D resides outside the US?
disregard them for venue purposes
When can you transfer venue?
for the convenience of the parties and witnesses in the interest of justice:

1. to any federal district court where the action could have been brought

2. any court to which all parties consent


If the suit is in the wrong venue, court may grant a motion to dismiss or transfer if it is in the interest of justice or D may waive the right to object to improper venue
What are the SMJ sources under 42 USC 1983
1331 and 1343
What violations are covered by 1983?
violations of rights established by the constitution, statutes, or case law
What Ds may be sued in a 1983 suit?
state or local government people who are acting under color of state law or

local government entities
What remedies are available under 1983
damages, injunctions, and declaratory judgments
When may attorneys fees be awarded in a 1983 suit
only when the plaintiff wins

and to D when D wins and when court finds P litigated in bad fath as by bringing a frivolous claim
Can P obtain remedies against the state of LA under 1983
no, the state has 11th amendment immunity
Can P obtain remedies against the Attorney general?
yes under ex parte young if:

P sues AG in official capacity in order to enjoin the enforcement of the state statute on the grouns that it violates federal law

ii) no $ are available against the State AG because of 11th amendment immunity
When can you obtain damages against a police officer?
if you sue them in their personal capacity
Can a D seek an immediate appeal of a denial of a motion to dismiss a 1983 suit?
yes because it satisfies the requirements of the collateral order doctrine

1. conclusively determines a disputed question
2. resolves an issue that is effetively unreviewable later
3. resolves an important issue that is separate from the merits
What is the Younger Abstention Doctrine?
a federal court cannot issue an injunction against ongoing state criminal proceedings

this doctrine applies in some civil cases - when 1983 plaintiff seeks an injunction from a federal court against pending civil proceedings that implicate a vital state interest
What suits must be dismissed under the Tax Injunction Act?
When a plain, speedy, and efficient remedy is available in state court, a FC must dismiss suits by Ps:

1. seeking to enjoin the collection of any tax imposed by state or local law

2. seeking DJ or damages for wrongful tax assessment
P v D in 1332 federal suit
P seeks INJ against D
State commissioner has exclusive authority to enforce the relevant regulation
P complained to the commissioner but was ignored
Hearing now scheduled for commissioner to hear P's complaint

What should D do
D should ask the federal court to abstain under the Burford abstention doctrine and dismiss the plaintiff's federal suit so that the parties may resolve the disputed issue in proceedings before the state commissioner
What is the purpose of the Burford extension?
serves to:

a. prevent interference by federal court with administrative state regulatory schemes

b. when those schemes relate to local matters that traditionally are subject to state regulation such as natural resources and property
What is the time limit for service of the complaint and summons?
within 120 days after the complaint is filed
Who is NOT qualified to perform service
a. a person who is a party

b. a person who is under 18 years of age
What are the requirements for another person to receive service on behalf of D at his or her place of abode?
a. must reside there

b. must be SAD
When will a court extend time for service?
P shows good cause
What is the first step in the process for P to obtain a waiver of service from D?
Plaintiff must send the D these items by first class mail:

a. a copy of the complaint

b. a request for waiver

c. two copies of the waiver

d. a pre-paid means of returning the executed waiver to P
How much time does D have to return the executed waiver?
at least 30 days from the date when P sent the request
If D executes the waiver of service, how much time does D have to file the Answer?
D has 60 days from the date when P sent the request
What should plaintiff do with the executed waiver of service?
P should file the executed waiver in federal court as proof of substitute service
Does the D's waiver of service also constitute a waiver of D's rights to object to defects in SMJ or personal jurisdiction or improper venue?
no
Assuming that D lacks good cause to refuse to execute the waiver of service, what are the consequences of D's refusal
1. D must reimburse P for the costs of service charged by a private process server, and

2. D must pay a reasonable attorney's fee to P's attorney for preparing the motion for costs, and

3. D must reimburse P for the court costs of the filing fee for filing the motion
P v. D1 and D2 in federal court
P seeks personal injury $
D2 files 12(b)(6) motion to dismiss, attaching documents, affidavit, and photograph

What is the standard for the court's review of the motion
under 12(b)(6), there are 2 bases for granting a motion to dismiss:

1. either the court can grant the Motion if P's claim is not cognizable as a matter of law, or

2. the court can grant the motion if P's factual allegations fail to satisfy the plausibility standard because the pleaded facts do not give rise to the reasonably founded hope that discovery process will reveal relevant evidence to support the claim

However, under Rule 12(b)(6), the court is allowed to consider only the pleadings and must accept P's pleaded allegations as true.

Under rule 12(d), the court must treat a 12b6 motion to dismiss as a rule 56 Motion for Summary Judgment "if matters outside the pleadings are presented to and not excluded by the court.

The court should grant a motion for summary judgment based on evidence that:

a. there is no genuine dispute as to any material fact
b. D2 is entitled to judgment as a matter of law

D2 can satisfy this by showing P cannot produce admissible evidence to support the presence of a genuine factual dispute.
P filed a complaint against D even though their contract provided for mediation in the case of breach. D's counsel wrote P's counsel a letter pointing this out. P's counsel refused to voluntarily dismiss the complaint.

What steps must D's counsel take with respect to a Rule 11 motion for sanctions?
1. Before filed, P's attorney must be served with the motion and must have 21 days to consider whether to withdraw the complaint

2. when assessing the merits of rule 11 motion, the court will determine whether the complaint was based on P's attorney's best knowledge, information, or belief that was formed after an inquiry that was reasonable under the circumstances.

Court must determine:

1. whether the pleading is legally or factually baseless from an objective perspective

2. whether P's attorney conducted a reasonable and competent inquiry before signing and filing
What is a party's obligation with respect to production of documents?
Under Rule 34, a party must produce all discoverable requested documents that are in a party's possession, custody, or control.

A party has a duty to make a reasonable search of all sources likely to contain the requested documents.

There is no exception under rule 34 that would allow a party to withhold an additional box of documents that was overlooked earlier. There is a continuing duty to disclose.

It is irrelevant that a party would not want to use any of the documents in the recently discovered box at trial.
How is discoverable material defined under the discovery rules?
Under R26, parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claims or defenses.

Relevants information need not be admissible at trial as long as the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

Ordinarily a party may not discovery documents that another party prepared in anticipation of litigation
Under R26, what 2 categories of "initial disclosures" are defined in terms that take account of the use that the disclosing party may make of the evidence?
1. information about people (including name, address, and phone number) that must be disclosed when those people are likely to have discoverable material, along with the subjects of information that the disclosing party may use to support its claims or defenses unless the use would be solely for impeachment

2. a copy or description of all documents, e-stored info, and tangible things that the disclosing party has in its possession, custody, or control, and may use to support its claims and defenses, unless that use is solely for impeachment
What are the 2 other categories of required initial disclosure info?
1. necessary to disclose an insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment

2. computation of damages of each category of damages claimed by the disclosing party and the documents or evidentiary material on which each computation is based, including materials bearing on the nature and extent of injuries suffered.
What is the penalty for failing to comply with the obligations to make initial disclosures under rule 26?
party who failed to make the required disclosure will be prohibited from using the evidence at trial, except for the purposes of impeachment, unless the party can show that non-disclosure was either "substantially harmless" or "justified"
P's lawyer asked D to schedule a 26(f) conference to develop a discovery plan. P also sent 35 basic interrogatories. What 2 grounds can D raise to object to the interrogatories?
1. R26(d)(1) prohibits a party from seeking discovery from any source before the R26(f) conference occurs

2. under Rule 33, a party must obtain leave of court to issue more than 25 interrogatories if the parties have not stipulated to a larger number
How many depositions can you obtain without leave of court?

How many requests for admission?
10 depositions

R30 does not limit the number of requests for admission
In a summary judgment motion remember:
-no genuine issue of material fact
-entitled to judgment as matter of law
-can show absence of factual dispute by citing to the record
-if relying on affidavits they must (1) competent (2) personal knowledge (3) admissible

Court must construe the facts in the light most favorable to the non-movant and cannot weigh the conflicting evidence
D's attorney believes that P cannot establish liability because P's evidence did not meet the demanding standard required under the state law. What motion could D's counsel make to obtain dismissal of P's claim?
R50 Motion for Judgment as a Matter of Law

Court will resolve P's claim in favor of D on grounds that P cannot establish D's liability.
When can a D make a R50 JML Motion during trial?
after P has been fully heard on the issue of liability and

any time before the case is submitted to the jury
What standard should the judge apply when ruling on defense counsel's JML motion?
Will grant if there is no legally sufficient evidentiary basis for a reasonable jury to find for P on the issue of liability
What must D counsel do in order to preserve the right to make a JML motion after trial?
D must make the motion once during trial
When can you appeal the dismissal of a claim against D2, when a claim against D1 is still pending?
Under Sec. 1291, an appeal is allowed only after a final judgment is entered that disposes of all claims and all parties.

The dismissal here is only an interlocutory order and not a final judgment.

However, P may ask the federal district court to certify under Rule 54(b) that there is no just reason for delay, and to order the clerk to enter a final judgment as to the claims or parties that have been disposed of.
Assume P obtained a favorable verdict. What are the post-trial remedies available to D?
1. If D made a JML motion once during trial, D may renew this motion within 28 days of the entry of judgment.

2. Rule 59 motion for new trial within 28 days of the entry of judgment. (must show that the verdict was against the clear weight of evidence)

3. D can file R62 motion for a stay of the judgment while trial judge decides the post trial motions. Automatic stay expires 14 days after the entry of judgment, so this is needed to extend the stay beyond 14

4. FRAP rule 8, D can file a motion in DC seeking a supersedeas bond and stay of execution of the judgment. This will prevent P from collecting or enforcing the judgment during appeal

5. D must file the notice of appeal in FDC court within 30 days of entry of judgment