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113 Cards in this Set

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I. Personal Jurisdiction: Issue
in which states can a defendant be sued?
c. The Inquiry: 2 Steps (same in state and federal court)
i. Satisfy a state statute: state statute permitting personal jurisdiction
1. If given a statute, argue it both ways and move on.
ii. Satisfy the constitution (to ensure due process): International Shoe Test
b. Constitutional Limitations on Personal Jurisdiction
Jurisdiction is constitutional when sufficient mimimum contacts exist b/n the defendant and the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. This standard requires two hurdles to be cleared: minimum contacts and reasonableness.
MINIMUM CONTACTS
1. Does the Δ have such minimum contacts w/the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?
a. Traditional bases of PJ:
state of domicile, consent, being served in the forum state (if not tricked or forced into the forum).
b. Factors indicating Δ’s contact with the forum state
My Parents Frequently Forgot to Read Children's Stories

Minimum Contacts (Systematic and Continuous); Purposeful Availment; Foreseeability; Fairness; Relatedness; Convenince; States Interest
i. Systematic and Continuous
Court will weigh the quantity and nature of the d’s contacts w/ the forum.
ii. Purposeful availment
Whehter the d. purposefully availed itself of the benefits and protections of the forum state. Δ’s voluntary acts; Δ must reach out to the forum; contact can’t be accidental
iii. Foreseeability
foreseeable that Δ would be sued in the forum state
c. Fairness (fair play and substantial justice): Consider
i. Relatedness
ii. Convenience
iii. State’s Interests
Relatedness
b/t the contact and the claim. Does Π’s claim arise from Δ’s contact w/the forum

(not necessary if d. has substantial ties - general jurisdiction BUT more important w/ less contact)
Conveninece
Δ may complain that the forum makes it tough for him to litigate b/c it is far from home.
1. Forum OK unless it puts Δ at a severe disadvantage in the litigation
State's Interest
iii. State’s Interests: such as providing a forum for its citizens
II. Subject Matter Jurisdiction. Issue
can the federal court hear the case, or should the claim be litigated in state court.
i. Two Principle Types of Cases for FC
Diversity or Federal Question Jurisdiction
b. Diversity Jurisdiction
(1) Amount in controversy exceeds $75,000 exclusive of interest and costs (must be pled in good faith, meaning there must be a legally tenable possibility that recovery will exceed the jurisdictional amount); AND (2) the action is b/t citizens of different states (or b/t a citizen of a state and a foreign citizen/alien)
1. Complete Diversity Rule: there is NO citizenship jurisdiction if any Π is the citizen of the same state as any Δ.
a. Test for complete diversity is when the case is filed
ii. Citizenship: who is a citizen of what state? Humans
i. Presence in-state at some point (a physical requirement) AND
ii. A subjective intent to make it your permanent home; (a mental requirement)
just moving is insufficient.
1. Intent: determined by many relevant factors, such as voting, payment of in-state tuition
b. A human can NOT have more than one state of domicile
2. Corporations
DON'T TALK ABOUT DOMICILE, TALK ABOUT CITIZENSHIP.

i. All states where incorporated (usually only one) AND
ii. The ONE state that is the Corp’s PPB
b. Can have more than one citizenship, but only one PPB
c. Test for PPB
i. Headquarters (nerve center: where decisions are made) OR
ii. Where the Corp does more production or service activity than anywhere else (muscle center).
iii. NOTE: most courts use nerve center test unless all activity is in ONE state.
3. Unincorporated associations (e.g., partnerships or labor unions):
use the citizenship of all members (that includes general or limited partners)
4. Decedents, minors, and incompetents
look to their citizenship and NOT that of their representative.
iii. Amount in Controversy
2. If Π ultimately recovers less than $75K
jurisdiction still ok BUT, Π may be liable to Δ for litigation costs, even though she won the case
Amount in Controversy
3. Aggregation
only ok if you’re dealing w/one Π v. one Δ or joint tortfeasors; NO aggregation otherwise
iii. Amount in Controversy

4. Suits for Injunctions
Two Tests (if either met, ok):
a. Plaintiff’s viewpoint: does the blocked view decrease the value of Π’s property by more than $75K?
b. Defendant’s viewpoint: would it cost Δ more than $75K to comply w/the injunction?
c. Federal Question Cases

+ Well pleaded complaint rule
i. RULE: complaint must show that a right or interest founded substantially on federal law (CON or legislation). Π suing to enforce a federal RIGHT.

THE CLAIM ARISES UNDER FEDERAL LAW.

Well Pleaded Complaint Rule - p. claim, properly pleaded must be based on federal law.
ii. Exclusive FQ Jurisdiction
patent infringement, federal antitrust, and securities claims
d. Supplemental Jurisdiction
For every claim joined in FC, there must be SMJ. If can’t get SMJ via diversity or FQ jurisdiction, try supplemental jurisdiction, which permits the FC to entertain claim over which it wouldn’t have an independent basis for SMJ.
SUPPLEMENTAL JURISDICTION

ii. Re. Compulsory Counterclaims
Supplemental Jurisdiction extends to compulsory counterclaims. No independent basis for subject matter jurisdiction is necessary to support a counterclaim, provided the claim arises from a common nucleus of operative facts
SUPPLEMENTAL JURISDICTION

iii. Test
the claim must share a common nucleus of operative facts wilth the claim the invoked federal SMJ. This test is met by claims that arise from the same transaction or occurrence as teh underlying claim. You would expect to try such claims in the same case.
SUPPLEMENTAL JURISDICTION

iv. Limitations
A non-federal, non-diversity claim can be herd in federal court if it meets "the test" (common nucleaurs of operative facts = same T/O) UNLESS IT IS
1) Asserted by a p.
2) In a diversity of citizenship (not FQ) case AND
3) Would violate complete diversity.
SUPPLEMENTAL JURISDICTION

Discretionary Factors

Pendent Parties
Court has discretion not to hear the supplemental claim: (1) if the federal question is dismissed early in the proceedings; or (2) if the state law claim is complex or (3) state law issues would predominate.

FQ case & p. brings in another D. that doesn't meet diversity but does involve the same T/O - okay
SUPPLEMENTAL JURISDICTION

Ancillary
vi. Ancillary: applies to claims joined by anybody but the Π in any type of case (FQ or diversity).
1. Requirements: claim arises from the same T/O as underlying case
2. Court has same discretion as it does w/pendent jurisdiction.

Xr. w/ joinder.
REMOVAL (def)

- What Cases
- Where
- Diversity Rule.
Def - Allows Defendants (only & all must agree) to have a case finled in state court "removed" to federal court. Only goes from state to federal. If improperty the fed. ct. remands
i. D can remove if the case could b heard in federal court (FSMJ)
ii. The case can only be removed to the federal district embracing the state court in which the case was originally filed.
iii. Diversity Rule: if any Δ is a citizen of forum state, NO removal.
REMOVAL - Timing
iv. Timing: no later than 30 days after service for the first removable document (usually after initial service of process); case can become removable later.
1. Diversity: no removal more than one year after case filed in state court. -> remember dismissal to defeat diversity rule.
REMOVAL - Original p.
can NEVER remove, even if subject to a counter claim
PROCEDURE FOR REMOVAL
1. Δ files notice of removal in FC, stating grounds for removal; signed under Rule. Then file notice in state court
2. Improper procedure: Π moves to remand w/in 30 days of removal
a. If no SMJ, Π OR FC can (move) to remand at any time
viii. Waiving Right to Remove
1. Δ files permissive counterclaim in state court: probable waiver
2. Δ files compulsory counterclaim: probably NOT waived
f. Erie Doctrine (for diversity cases): always raise w/ a diversity situation
Under the Erie doctrine, a federal court, in a diversity case, is required to apply the substantive law of the state in which it is sitting, but must apply federal procedure rules. However, a federal procedural rule will not be applied in diversity cases when its effect would be to toll a state statute of limitations.
ii. Substantive law: factors to consider
1. Clearly, elements of a claim or defense, S of L, rules for tolling S of L, and choice of law rules are substantive law.
-> BE AWARE: If there is a federal law on point that dir. conflicts w/ state law - apply fed. b/c of Supremacy Clause.
-> FRCP - always procedural so always applied.
2. Outcome determinative: would applying or ignoring the state law affect outcome? If so, likely substantive.
3. Balance of interests: do either of the systems have a strong interest in having their laws applied?
4. Avoid forum shopping: if FC ignores state law, would it cause parties to flock to FC? If so, probably apply state law.

(iii. Certification to state SC may be permissible if state substantive law is very unclear.)
VENUE - Issue
in which Federal District Court can Π file suit?

NOT REMOVAL - applies when the p. originally files in federal court.
VENUE - Rules
in any case where there is SMJ, Π may lay venue in “any district where”:
i. All the defendants reside OR
1. Special Rule: if all the defendants are in different districts but they all reside in the same state, venue is proper in any district that one of them resides.
ii. A substantial part of the claim arose.
d. Where does a Defendant Reside?
i. Individuals: residence basically equals domicile, so usually same place as citizenship for diversity purposes
ii. Corporations: all districts where it is subject to PJ when the case is commenced.
1. Distinguish: PJ from diversity for SMJ  PJ can be in all 50 states b/c of contact BUT, SMJ only in state(s) of incorporation and PPB.
VENUE - local actions
any action re ownership, possession, or injury to land (including trespass) must be filed in the district where the land lies.
TRANSFER OF VENUE
Sending a case from one federal district court to another federal district court.

can only transfer to a DC where the case could have been filed
i. Meaning: (1) proper venue; and (2) court has PJ over Δ.

w/out waiver by d.
TRANSFER OF VENUE - Forum Non Convenines

Essay Tip - always begin first w/ a general discussion of venue.
a. When transfer is impossible, b/c it is in a different judicial system (e.g., foreign country): Court may dismiss, usually w/o prejudice, to let Π sue there.
i. Decision depends on: very strong showing of:
1. Public factors: what law applies, what community should be burdened w/jury service; need for fact-finder to visit site
2. Private factors: where witnesses and evidence are.
3. Does NOT matter that Π may recover less in the other court
ii. Almost never dismiss if Π a resident of the present forum.

-- these are also factors the court consideres in general transfer of venue cases.
TRANSFER OF VENUE - Venue in original court improper
court may transfer OR dismiss, in the interests of justice.
IV. Service of Process
Must give d. a (1) summons (formal court notice of suit and time for response) and (2) a copy of the complaint must be served by any non party who is at least 18 yrs old, w/in 120 days of filing the complaint or the case is dismissed w/out prejudice. (unless good cause)
Methods of Service - Personal Service
give to Δ personally anywhere in the state (or maybe can be out of the state)
1. Exceptions: Δ immune from service if in state solely to be a W or a party to another civil action.
2. Out of state service: only ok if forum state’s law permits via statute UNLESS (where state law irrelevant):
a. Bulge rule or
b. Statutory interpleader
Methods of Service - Substituted Service
: left w/someone; ok if (1) Δ’s abode AND (2) serve someone of suitable age and discretion who resides there
Methods of Service - Service on D Agent
ok as long as receipt of service is w/in the scope of agency
Methods of Service - Waiver by Mail
process mailed to Δ by first class mail, postage prepaid.
1. OK if Δ returns waiver form w/in 30 days.
a. Effect: waiving formal service (but NOTHING else; e.g., no waiver of PJ objection)
2. If no return by Δ, serve formally, and Δ may be required to pay cost of service.

-- also methods permitted by state law.
Pleadings
documents setting forth claims and defenses
i. FRCP: uses notice pleadings - only required to convey enough of your contentions to put others on notice and to allow a meaningful response

NOT REQ. OF FACT OR DETAIL
Rule 11
i. Requires attorney (or pro se party) to sign all pleadings, written motions, and papers (other than discovery documents), certifying that to the best of her knowledge and belief, after reasonable inquiry:
1. The paper is not for an improper purpose;
2. The legal contentions are warranted by law (or a nonfrivolous argument for change);
3. The factual contentions and denials have evidentiary support (or are likely to after further investigation).
- continuous certification
Rule 11 - sanctions
purpose is to deter and not punish
1. Can be levied on attorney, party, or law firm
Rule 11 - Motion for Violation
served on other parties but NOT w/court, at first
1. Safe harbor of 21 days for party allegedly violating Rule 11 to withdraw the document or fix the problem
2. If no fixing, file w/court
Complaint
principle pleading by Π; filing commences action
i. Requirements: strictly enforced, even WRT pro se litigants.
1. Statement of SMJ
2. Short and plain statement of the claim showing entitled to relief
3. Demand for judgment
ii. Special matters requiring pleading w/particularity or specificity: fraud, mistake, or special damages (i.e., those that don’t normally flow from an event).
D. Response to the Complaint.
D must respond by filing either an answer or a Motion (w/in 20 days of service of process)
Definition of Motions

Types of Motions - Issues of Form
Motions are not pleadings they are requests for a court order.

a. 12e: Motion for a more definite statement
b. 12f: Motion to strike b/c based on immaterial things (e.g., demand for jury when no such right exists)
i. Can be brought by either party
Rule 12b (1-7)
a. 12b1: lack of SMJ
b. 12b2: lack of PJ
c. 12b3: improper venue
d. 12b4: insufficiency of process (dealing w/documents themselves)
e. 12b5: insufficient service of process
f. 12b6: failure to state a claim
g. 12b7: failure to join an indispensable party

These can be raised either by motion or answer.
Waivable 12 b Motions
2,3, 4, and 5  must be put in the FIRST response by Δ or it is waived!
Non-Waivable 12b motions
a. 6 and 7: can be raised at any time throughout trial
b. 12b1: NEVER waived; can be raised on appeal for 1st time
Defendant's Response (Timing)

re. particular motions
5. Timing:
a. 12e: must be filed before a responsive pleading
b. 12b motions: can make a pre-answer motion OR put it in the answer.
Answer - Timing
1. Timing: in general, w/in 20 days after service of process
a. If Δ files motions first: 10 days after court ruling
b. If Δ waives service, 60 days from Π’s mailing of the waiver
What D. Does in the Answer
i. Admit
ii. Deny
iii. OR, stating that Δ lacks sufficient info to admit or deny, which acts as a denial
1. Can NOT respond like this if info is public knowledge or in defendants control
iv. Failure to Deny: can count as an admission on anything except damages. YOU MUST DENY NOT ARGUE.
+ raises affirmative defenses - otherwise can't raise at trial.
Counter claims
offensive claims against an opposing party
1. Filed w/Δ’s answer
2. Compulsory: same T/O - must be filed (answer) in the peding case or it is waived.
i. If never had to file answer (e.g., file 12b6 and granted), NO waiver; subsequent suit ok.
3. Permissive: not from T/O
4. Still Need SMJ for that Claim:
Cross - Claims

THE BAR LOVES THESE!!
This is an offensive claim against a co-party (d ag. d). It MUST arise from the same T/O. It is NEVER compulsory.
Amending the Pleadings
i. Π has right to amend once before Δ serves answer (not a motion)
ii. Δ has right to amend once w/in 20 days of serving answer
iii. If no right to amend: seek leave of court
1. Granted if: justice so requires; usually allowed if no undue delay or prejudice
iv. If claimant/Π amends, Δ must respond w/in 10 days or the remaining 20 days, whichever is longer.
v. Variance: if bring up a new claim at trial and other side does NOT object, can later move to amend pleading so they conform to the evidence.
1. If other party objected, evidence of new claim NOT admissible b/c it is at “variance w/the pleadings.”
Admending Pleadings - Relation Back

DATES ALWAYS MATTER.
1. Amendments made after the S of L has run relate back to the date the original complaint was filed (and S of L problem avoided), as long as the amendment concerns the same conduct that is the subject of the original pleading
2. Amendment changing the Δ (not adding a claim) after S of L will relate back ONLY if:
a. It concerns the same conduct, T/O as the original; AND
b. The new party knew of the action w/in 120 of filing; AND
c. The new party knew that but for the mistake, it would have been named originally
d. NOTE: usually occurs when sue the wrong company (e.g., a subsidiary v. a parent company)
Joinder of Parties
- Those who may join

- Necessary and Indispensible Parties (those who must join)
Folks who may be joined: (1) arise from the same T/O AND (2) raise t lease one common q.
THEN ASSESS SMJ.

Necessary and Indespensible Parties - joinder compelled if feasible.
i. Necessary: if absentee meets any of these tests, court may compel joinder:
1. W/o absentee, court can’t accord relief (worried a/t multiple suits)
2. Absentee’s interests would be harmed if she isn’t joined*
3. Absentee claims an interest which subjects a party (usually Δ) to multiple obligations
4. NOT joint tortfeasors
Necessary and Indespensible Parties - Joinder Not Feasible if
1. No PJ over absentee
2. Joinder would destroy diversity
3. Absentee has a valid objection to venue
Necessary and Indespensible Parties - If not feasible to join court may either...
1. Proceed w/o the party OR dismiss the entire case
a. If dismiss, the absentee is considered indispensable
2. Proceed v. Dismiss: consider following factors:
a. Is an alternative forum available (including a state court)?
b. What is the actual likelihood of prejudice?
c. Can the court shape relief to avoid prejudice?
Joinder of Parties - Impleader
claims involving a 3d party (TPD) brought in by a defending party
i. Claim is for: indemnity or contribution
ii. Right to implead w/in 10 after serving answer; otherwise, need leave of court
iii. Procedure:
1. File 3d party complaint against TPD AND
2. Serve process (must have PJ and SMJ over TPD).
iv. After joinder:
1. Π can assert claim against TPD if arising from same T/O
2. TPD can assert claim against Π if arising from same T/O

v. SMJ: assess each claim on its own
Joinder of Parties - Class Action

Initial Requirements
1. NUMEROSITY: Too numerous for practicable joinder
2. COMMONALITY: Some questions of law/fact in common to the class
3. TYPICALITY: Representative’s claims or defenses are typical of those of the class
4. ADEQUATE REPRESENATATION: Representative will fairly and adequately represent the class.
Joinder of Parties - Class Action - Must fit w/in one of the following 3 types of cases
1. Prejudice: class treatment necessary to avoid harm either to class members or to the party opposing the class.
2. Injunction/Declaratory Judgment: sought b/c class treated alike by the other party.
3. Damages: (1) common questions predominate; AND (2) class action the superior method to handle the dispute.
Notice to the Class
1. For damages-type ONLY, must notify (often by mail) all reasonably identifiable members, telling them:
a. That they can opt out; the binding effect of a judgment on all class members; and that they can enter a separate appearance thru counsel
2. Cost of notice: representative
Binding Effect of the Class Action Judgment
all class members, except those who opt out (only available for damages-type class action)
Settlement or Dismissal of Class Claims
requires court approval
1. Court gives notice to get class members’ feedback
2. For damages-type case, members get 2nd chance to opt out.
Class Actions - SMJ
1. FQ invoked by Π-class: no problem
2. Diversity:
a. Look only to citizenship of the representative and the defendants
b. Amount in controversy: SPLIT
i. Every member of class must claim more than $75K
ii. 9th Cir.: ok if the representative’s claim exceeds $75K, regardless of the other class members
DISCOVERY

Discovery tools - which tools can be used to get information from a non-party
Depositions
Interrogatories
Requests to produce
Physical or Mental Examinations
Requrests for Admissions
Parties sign substantive answers to discovery under oath.
duty to supplement
Depositions
Depositions - Sworn oral statements responding to q. Can depose parties or non parties. Non party should be subponeaed, however not compelled to attend.
Interrogatories
- Questions in writing to another party. Not to non-party.
Requrests to produce
Requrests to another party, or non party if accompanied by a subponea, requesting to produce documents or things.
Physical or Mental Examinations
Only Available Through Court Order if it is actually in controversy (must show actual controversy and good cause)

Only for a party or a person in the party's control.
Request for Admission
A request by one party to another to admist the truth of any discoverable matters - cannot be to non-party.
Parties sign substantive answers to discovery under oath
Every discovery request and responsde is signed by attorney certifying (1) it's warranted; (2) no improper purpose and (3) not unduly burdensome.

Remember Rule 11 does NOT apply to discovery.
Duty to Supplement
If a party learns that it's response is incomplete, it must supplement its response.
Scope of Discovery
can discover anything “relevant to a claim or defense.” (relevant to something in the pleadings)

For good cause: anything relevant to the subject matter of the case
Relevant
reasonably calculated to lead to the discovery of admissible evidence. BROADER than admissible.
Privileged Matter
Not discoverable.
Work-product/Trial Prep Materials
material prepared in anticipation of litigation  generally protected from discovery
1. A witness statement may be discoverable if: opposing party shows (1) substantial need; AND (2) it is not otherwise discoverable.
2. Absolutely protected are: mental impressions, opinions, conclusions, or legal theories.
3. Can be generated by any representative of a party; not just lawyer
Expert witnesses
1. Required disclosures re expert who may be used at trial
2. Deposition of any expert proper if their opinion may be presented at trial
3. If retained in anticipation of litigation but will NOT testify at trial, no discovery absent “exceptional need.” (i.e., no other source).
Enforcement of Discovery Rules

i. Methods of presentment to the court
1. PROTECTIVE ORDER: Receiving party may seek protective order: if overburdensome or calls for trade secrets, etc.)
2. PARTIAL VIOLATION: Receiving party answers some questions and objects to others: if objections not upheld, a partial violation and light sanctions
3. TOTAL VIOLATION: Receiving party completely fails to respond: a total violation and expect heavy sanctions
Enforcement of Discovery Rules

ii. Sanctions against a party
The party seeking sanctions must first certify that she tried in good faith to get the info w/out court involvement.
Partial Violation.
Can get an order compellign the aprty ot answer + cost of bringing the motion.

If doesn't comply then RAMBO sactiosn + costs; and could be held in contempt for violating a court order.
Total Violations
Step 1 - rambo + costs
RAMBO SANCTION CHOICES
a. Establishment order: est. facts as true
b. Strike pleadings of violating party: as to issue re the discovery sought
c. Disallow evidence from violating party: as to issues re discovery sought
d. Dismiss Π’s case (if bad faith shown)
e. Enter default judgment against Δ (if bad faith shown)
Sanction Against a Non-Party
contempt for violating a court order or subponea
Sanction Against an Attorney
Liable for all expenses incurred by the other side if she counseld these bad acts.
Pretrial Adjudication

Voluntary Dismissal
P. files a written notice of dismissal.

i. Π can re-file once w/o prejudice if do so before Δ serves an answer or moves for summary judgment.
1. If re-file, even in state court, and then Π w/draws again, dismissed w/prejudice.
Pretrail Adjuciation

Failure to State a Claim
a test solely of the sufficiency of Π’s allegations
i. Standard: court assumes all allegations are true and asks: if Π proved all she has alleged, will she win a judgment?
1. If no, court may dismiss and grant leave to amend.
ii. The same motion, made after the d. has answered is called Motion for Judgment on the Pleadings (same thing w/a different name)
Pretrial Adjuciation

Summary Judgment
i. Moving party must show:
1. No genuine issue of material fact in dispute AND
2. That he is entitled to judgment as a matter of law
ii. Can move for partial summary judgment
iii. Court generally views evidence in light most favorable to nonmoving party
1. Based on admissible evidence; NOT the pleadings

AFFIDAVITS CAN BE EVIDENCE.
Conferences and Meetings

Pretrial Conferences
held as need to expedite case and foster settlement
i. Final PT Conference: determine issues to be tried and evidence to be proffered
1. Recorded in pretrial conference order and supersedes the pleadings
a. Amendment possible only to avoid manifest injustice OR, if evidence offered and not objected to, amend to conform w/evidence at trial.
Trial, Judgment, and Post-Trial Motions
Jury Trial
a. Jury Trial: juries determine facts and are instructed on law
i. Requirement of demand: must demand in writing no later than 10 days after service of final pleading raising a jury-triable issue.
ii. Right to Jury: 7th AM for FC cases “at law” where the amount in controversy exceeds $20; not suits at equity.
1. If case involves both: divide the case up by issue; jury for the facts underlying the law issues only
a. Usually, try jury issues first
iii. Voir Dire: each side has unlimited strikes for cause and 3 peremptory strikes, which must be used in a race/gender neutral way. (VD considered state action, even though these are civil cases).
Trial, Judgment, and Post-Trial Motions

Motion for JMOL: Directed Verdict
i. Timing: after the other side has been heard. So, Δ can move twice
ii. Standard: reasonable people couldn’t disagree re the result
1. Court generally views all evidence in the light most favorable to the nonmoving party
Trial, Judgment, and Post-Trial Motions

Renewed Judgment for JMOL
i. Timing: within 10 days after entry of judgment for opposing party
ii. Standard: reasonable people couldn’t disagree re the result.
iii. Prerequisite: must have moved for JMOL at the close of all the evidence; NOT just at some point before the jury verdict.
1. Means Δ may have to move twice; if only after Π’s case, waived
Trial, Judgment, and Post-Trial Motions

Motion for a New Trial
court starts over
i. Timing: w/in 10 days after judgment
ii. Grounds for re-trying the case:
1. Prejudicial (not harmless) error at trial makes judgment unfair (e.g., improper jury instruction or evidentiary ruling)
2. New evidence that could NOT have been discovered w/due diligence for the original trial
3. Prejudicial misconduct of a party, attorney, 3d party, or juror
4. Judgment is against weight of the evidence
Appeal - Final Judgment Rule
a. Final Judgment Rule: can only appeal from an ultimate decision by the trial court on the merits of the entire case.
i. File notice of appeal in trial court w/in 3 days of entry of judgment
ii. Final Judgment determination: after making the potentially-appealable order, does the trial court have anything left to do on the case?
1. NO FJ WRT: denial of motion for SJ; granting a motion for a new trial; denial of motion to remand to state court; grant of motion to remand to state court (by statute)
2. FJ: denial of motion for new trial; grant OR denial of renewed JMOL
Res Judicata and Collateral Estoppel

Issue
the preclusive effect of a former case on a subsequent case
Res Judicata (definition)
(claim preclusion): can only sue on a claim ONCE. Rule: Once a final judgment on the merits has been rendered on a particular cause of action, the π is barred by res judicata from trying the same cause of action in a later suit.
Res Judicata (requirements)
1. Case 1 and 2 brought by same claimant against same defendant – same configuration
2. Case 1 ended in a valid final judgment on the merits.
a. Not based on: jurisdiction, venue, or indispensable party OR, court negated, but does include a default judgments
3. Case 1 and case 2 asserted the same claim.
a. Remember all claims arising out of the same t/o are required to be brought together.
b. Methods of Defining Claim: know both
i. Transactional Definition: any right to relief arising from a T/O. BROAD. The federal rule.
ii. Primary Rights: separate claims for property damage and for personal injuries.
3 + definition
Collateral Estoppel (definition and effect)
(issue preclusion): precludes relitigation of a particular issue litigated and determined before.
i. Effect: issue deemed established in the 2d action, so it can’t be relitigated
Collateral Estoppel (mutuality issue)

- discuss this first.
a. Traditional view (mutuality): by someone who was a party to Case 1. NOT required by due process
b. Nonmutual defensive CE: Δ in case 2 and not a party to case 1)  usually permissible if Π had a full and fair opportunity to litigate the issue in case 1.
c. Nonmutual offensive CE: Π in case 2 who was not a party to case 1)  most courts wouldn’t allow but trend:
i. Would allow if it is not unfair to Δ: Factors:
1. Δ had a full and fair opportunity to litigate in Case 1
2. Δ could foresee multiple suits
3. Π couldn’t have been easily joined in case 1
4. There are no inconsistent judgments already on the record: if there was already multiple suits about this, it would be unfair to allow CE
Collateral Estoppel (requirements)
. Then go to the four elements: (1) case 1 ended in a valid final judgment on the merits; (2) Same issue was actually litigated and determined in Case 1; (3) the issue was essntial to the judgement; (4) Mutuality issue.