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32 Cards in this Set
- Front
- Back
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Supplemental Jurusdiction: gets non-diversity, non-FQ cases in fed court. |
1) base case 2) supplemental case 1. The test: same T/O 2. Limitation: only blocks cases where P2 in a diversity (P1 base) case is trying to overcome a lack of diversity in the 2nd supplemental case. |
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Removal/remand |
-Only D can remove!!! (P can't remove even in a counterclaim) -time: 30 days from service of process (从最后serve的D算起） - exception: in diversity cases ONLY 1.instate D: if any D is a citizen of the forum; or (Save for 1 - if the claim against the instate D was dropped（从这时重新算30天） - but stil need to qualify for 2!) 2. If more than 1yr after the case was filed in state court.
-place: the fed court that embraces the original state ct
- P gets to remand (within 30d after Notice of Removal was file by D. 例外：lack of SMJ - anytime even on appeal)
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Erie - in a diversity case, STate Calls |
1) if fed law in conflict with state law, apply fed law 2) if no conflicting fed law, must apply state substantive law on: - elements of claim or defense - statute of limitations - tolling of statute of limitations - conflict (or choice) of law rules 3) if neither 1 or 2, apply weighing these factors: - outcome determinative (state law if would affect outcome of case) - balance of interest - avoid forum shopping
* there is NO GENERAL FEDERAL COMMON LAW (for K/tort/property, must use state law) |
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Venue |
P may lay venue where: 1) all Ds reside (unless diff Ds reside in same state, then any district in that state); or 2) substantial part of claim arose. WHERE P RESIDES IS IRRELEVANT.
*note: this is only for cases that P filed directly in fed court. If got to fed ct by removal, then that one district that embraces the stare court
*for venue, doesn't matter whether diversity or FQ case
**reside: WHERE THERE IS PJ SO FOR CORPS: incorporation, PPB AND SUFFICIENT CONTACT (GENERAL PJ) -> OPERATIONS OMGGGGGGGGGGG |
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Transfer of venue |
The transferee must could have been where the case was filed: - transferee must be 1) of proper venue, and 2) have PJ over D. *this must be true INDEPENDENT OF WAIVER. *if transferor not proper venue, generally transfer, not dismissing the case.
*if original venue was proper, court may still transfer - "center of gravity" - valid forum selection clauses are enforced.
*if impossible to transfer, then Forum Non Conveniens (dismiss or stays case) - P will then sue in another court. (只要foreign court允许受理此类案件即可，至于程序/damages无所谓） |
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Service of Process:
MIC is SAD bc he was properly served with process by Minnie |
-Mailing process to D who must consent to service - In-hand personal delivery to D - Court authorized method of service of process delivered to person of Suitable age and discretion at last known address -Agent -Due diligence (nail, mail and file) |
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Pleadings - P complaint - D response |
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Pleadings: P complaint: filing this commences action |
Must have: 1) statement of grounds for SMJ 2) short statement of claim 3) demand for relief sought *need to plead facts supporting a plausible claim * must state with particularity: -fraud -mistake -special damages *P does NOT need to allege grounds of PJ or venue
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Pleadings: D response |
Time: 21d from service of process/60d from waiver of service of process
Method: by 1) motion or 2) answer |
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Pleadings- D response- Motions |
1) lack of SMJ 2) failure to state a claim 3) failure to join indispensable party 4) lack of PJ 5) improper venue 6) improper process 7) improper service of process
*4-7 must be put in the first response (motion or answer) OR THEY ARE WAIVED. (If you wear PJs to someone else's bed, holding bad papers-waivable)
*2-3 can be raised anytime THROUGH TRIAL
*lack of SMJ can be raised ANYTIME EVEN ON APPEAL (fed ct要不dismiss (originally filed) 要不remand (removed) |
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Pleadings - D response - answer |
D does 2 things in answer: 1) respond to allegations of complaint: a) admit b) deny c) state that you lack sufficiency to admit or deny (=denial. D HAS TO INVESTIGATE WITHIN 21 days of being served. Can't just say he doesn't know) *if you don't deny, surely you'll fry.
2) raise affirmative defenses: statute of limitations/ statute of frauds/res judicata, self defense. *must put these new facts BEFORE TRIAL OR CONSIDERED WAIVED.
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Pleadings - D response - answer - counterclaim and crossclaims and additional claims |
***both need SMJ - try supplemental Jurusdiction!!!****
Counterclaims: - D to P 1) compulsory: arise from same T/O as P claim. *MUST FILE IN THE PENDING CASE OR IS WAIVED!!(can't later file a new case re the counterclaim) - this is the only one that's compulsory. 2) permissive: can file in this case or a new case
- P must respond within 21d of D serving counterclaim
Cross claim: Filed 1)against co-party and 2) arises from same T/O - may file in pending case or another case
Additional claims: can be filed with counterclaim or cross claim even if not same T/O, as long as have SMJ
**note that when D files counterclaim or cross claim or additional claim, supplemental jurisdiction limitation doesn't apply BECAUSE IT ONLY APPLIES TO P - also note, if supplemental jurisdiction doesn't get it in, goes to STATE COURT |
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Pleadings -amended pleadings |
1) P has right to amend ONCE within 21d after D serves her first Rule 12 response 2) D has right to amend ONCE within 21d of serving answer. 3) variance (when evidence presented at court>what was pleaded): D doesn't object-amend complaint to conform to the evidence. D objects: no conforming evidence is inadmissible. *4) relation back amendment (to avoid statute of limitations): when original claim and new claim arise from same T/O, new claim is deemed to be filed on the date of original claim to avoid statute of limitations passed. |
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Pleadings - ***supplemental pleadings (things happened after the original pleading was filed) (amended pleadings is things before pleading was filed but not asserted till later) |
***theres no right to Supplemental pleadings, always discretionary, |
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Discovery - mandatory disclosures |
Even though sth might not have to be turned in by mandatory disclosure (harmful to party), it might still get turned in using other tools (relevance)
1) initial disclosures: SIM Must disclose within 14d of Rule 26(f) conference -Supporting ppl/things/docs (*if don't disclose, can't use witness/thing as evidence on trial) -Insurance coverage (even if not admissible at trial - discoverable is wider than admissible) -Monetary relief: amount and computation
2) expert witnesses *must be for PURPOSES OF THIS LITIGATION ONLY. Party has to intend to call the EW at trial. EW statements&docs are work product - protected. - subpeona EW for attendance - pay EW reasonable fee per hour - EW may give opinion+hired to give opinion in this case. Not everyone who had qualifications is EW. *failure to identify EW-can't use EW in the case. |
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Discovery - other discovery tools (if can't get sth in from initial mandatory disclosures, can still get in using this) |
1) depositions (oral or written). Usage subject to evidence rules 2) interrogatories (written Q&A) - *to parties only, and can allow to look for business records 3) requests to produce 4) medical exam - *must have court order. *only parties or sb in the party's custody or legal control can be ordered to undergo exam. 5) request for admission - *parties only. Usu used to authenticate
*there is ongoing DUTY to supplement after submitting response. |
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Discovery - other discovery tools (if can't get sth in from initial mandatory disclosures, can still get in using this) |
1) depositions (oral or written). Usage subject to evidence rules 2) interrogatories (written Q&A) - *to parties only, and can allow to look for business records 3) requests to produce 4) medical exam - *must have court order. *only parties or sb in the party's custody or legal control can be ordered to undergo exam. *no contempt for refusal to submit to medical exam. 5) request for admission - *parties only. Usu used to authenticate
*there is ongoing DUTY to supplement after submitting response. |
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Discovery -scope of discovery |
Scope: anything reasonably calculated to lead to discovery of admissible evidence. *as long as relevant -> discoverable.
Privilege is a defense.
Work product (反business records): material prepared in anticipation of litigation. (Not bc a report is required) - Generally protected, except qualified WP. - absolute WP: mental impressions/opinions/conclusions/legal theories. -qualified WP: statements of fact by witness. -* identity of ppl with discoverable info is always discoverable, not subject to WP defense. - *a party has right to request it's own statements, not subject to WP defense. - must asset WP expressly in privilege log. |
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Discovery - court enforcement of discovery rules |
Court can get involved: 1) protective order (trade secrets) 2) partial response to discovery request 3) no response to discovery request
Sanctions: 1) partial response: order to compel to respond, if not then 2). 2) no response; Judge DRIPS hot wax - Judgement against D - Dismiss P's claim -Resolution -Imposition of attorney fees -Precludes evidence of in disclosing party from being admitted - Strike pleadings of non disclosing party. |
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Multiparty claims -Someone new ("I") |
1) must be necessary/indispensable - if you're not in, you'll be harmed (eg. Stock cancellation) 2) court decides whether you join.
Impleader claim: D brings someone new (noncompulsory, only compulsory counterclaim is compulsory) -*D can only do this if he admits he's liable in the 1st place! (Indemnity or contribution) - must have PJ and SMJ (try supplemental jurisdiction) for TPD. -after TPD joined, P may assert claim against TPD (same T/O), and vice versa.
Intervention: TP brings self in. She chooses to be P or D. -also need PJ&SMJ |
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Multiparty claims -Someone new ("I") |
1) must be necessary/indispensable - if you're not in, you'll be harmed (eg. Stock cancellation) 2) court decides whether you join.
Impleader claim: D brings someone new (noncompulsory, only compulsory counterclaim is compulsory) -*D can only do this if he admits he's liable in the 1st place! (Indemnity or contribution) - must have PJ and SMJ (try supplemental jurisdiction) for TPD. -after TPD joined, P may assert claim against TPD (same T/O), and vice versa.
Intervention: TP brings self in. She chooses to be P or D. -also need PJ&SMJ
Interpleader: P has action btwn 2 Ds: -"Statutory interpleader": needs no diversity. -"rule interpleader": needs diversity. |
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Multiparty litigation - class action |
***SMJ - look to rep only for diversity case -1) "prejudice" -2) injunction/declaratory judgment (eg. Employment discrimination) - can't seek damages -3) damages: *the only type w/requirement of individual notice; *the only type where class members have right to opt out. -*not a class action under 3) until court certifies it and appoints class counsel. - *in type 3) court might give class members a second chance to opt out AFTER settlement offer!! |
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Adjudicating dispute TRO-> Preliminary injunctive relief -> trial |
- TRO: maintain status quo until hearing re preliminary injunction. (D can move to modify or dissolve the TRO) (TRO cannot exceed 28d)
- preliminary injunctive relief: order that maintains status quo until TRIAL (eg. trade secrets etc). *cannot be granted ex parte (without giving notice to the other party). *an order granting/denying preliminary injunction is immediately appealable. |
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Adjudicating - pretrial adjudication |
1) voluntary dismissal by P: can only do it once ("without prejudice"), else "with prejudice" - P can't refile case. 2) default & default judgment: default cuts off D's right to respond. Default judgment gets P damages. *P can get damages more than asked for/different type of relief on trial, but not on default judgment. 3)**motion to dismiss for failure to state a claim: court only looks at *P's allegations of FACT and ask if P would win a judgment if all facts were true. Court doesn't look at evidence (only face of the complaint) 4)**motion for summary judgment: moving party must show: ***** - 1) that there is no genuine issue dispute on a material fact; AND - 2) she is entitled to judgment as a matter of law. ******* -not a right; discretionary. -can move for partial judgement (all liablity conclusively estaished, all that's left is a trial solely for amount of damages) - court CAN look at evidence. ***if D offers evidence and moves for summary judgment, and P relies solely on it's complaint - summary judgment for D granted bc pleadings are not evidence (not made under oath)! ****also the evidence must be firsthand knowledge, so if P offers evidence but based on hearsay, still grant summary judgment for D. |
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Adjudication -pretrial conferences |
- pretrial conference order supersedes the pleadings. (No surprise witnesses at trial!) |
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Adjudication - trial, judgments, post-trial motions |
Trial: 1) 7th A right to jury trial in FED COURT ONLY, deciding ONLY THE DAMAGES CLAIM (not the equity claim) Must demand in writing to jury trial within 14d after service of the last pleading raising jury triabr issue - or else waive right to jury. ***strikes to jury: -for cause: no limits - peremptory: 3 strikes (not racial/gender biased even in state action of private civil litigation!!) ***6-12 jurors -Need at least 6 to return verdict unless the parties agree otherwise. - verdict must be unanimous unless parties agree otherwise.
***Jury instructions - parties can make specific objections before final judgment and instruction. Else waived.
***verdicts reached -general: jury gives verdict -special: jury answers questions and judge gives legal conclusion.
***verdict can be impeached by "extrinsic matters" but not by "intrinsic matters" - can't delve into thought process.
Bench trial - when there's no jury - must have: findings of fact, conclusion of law, and judgment,
**motions for judgment as a matter of law = directed verdict - like summary judgment, but comes up at trial instead of before trial. A party can move for JMOL after the other side had been heard at trial.
***RJMOL - same as JMOL but cones up after trial (jury reached conclusion that reasonable ppl could not have reached) - ****so judge directly OVERTURNS THE VERDICT. (Harsher than motion for new trial) -****prerequisite: MUST have moved for JMOL at a proper time at trial, else can't move for RJMOL.
Motion for a new trial - can do if a party waved motion for RJMOL. (Didn't have prerequisite)
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Additur & Remittitur
Standard: when the figure of damages shocks the conscience. |
Additur: when damages awarded to P is too low. D choose to either 1) pay more or 2) new trial (ok in state court. Unconstitutional in fed court)
Remittitur: when damages to P too high. P choose to either 1) take less by court or 2) go through new trial. (Ok in both state and fed court)
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Additur & Remittitur
Standard: when the figure of damages shocks the conscience. |
Additur: when damages awarded to P is too low. D choose to either 1) pay more or 2) new trial (ok in state court. Unconstitutional in fed court)
Remittitur: when damages to P too high. P choose to either 1) take less by court or 2) go through new trial. (Ok in both state and fed court)
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Motion for relief from order of judgment (set aside a court order) (JMOL: set aside jury verdict) |
1) clerical error: anytime 2) mistake, excusable neglect: <1yr 3. New evidence that could not have been discovered with due diligence for a new trial motion: <1yr 4) judgment void (no SMJ): anytime. |
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Appeal - final judgment |
Final judgment rule: does the court have anything left to do on the merits? (Denial of motion for a new trial - yes. Others are usu not final judgment)
If no, must file appeal within 30d from final judgment entered.
Exceptions: May appeal even though not final review: 1) interlocutors review: orders granting/modifying/refusing preliminary or permanent injunctions. 2) collateral order: appellate court has discretion to hear ruling on issue if a) distinct from merits of the case, b) involves important legal question, and c) is essentially in reviewable if parties must await a final judgment. 3) when >1 claim and court finds no reasonable reason to delay (if has counterclaim in case, original case is not appealable bc still pending. However, court can still direct entry if final judgment on the counterclaim and allow appeal of issue now). 4) class action: court has discretion (not right) to review. Must file within 14d of order.
**Standard of review: -question of law (content of jury instructions): de novo (no reference to the trial judge) - (both jury and non) jury trial: question of fact: Affirm unless obviously wrong/reasonable ppl couldn't have made that finding. - discretionary matters: on a non-abuse of power standard. Otherwise will affirm (eg. Decision whether to give Jury instructions)
-no reversal if harmless error (you're not entitled to a perfect trial)
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Appeal - final judgment |
Final judgment rule: does the court have anything left to do on the merits? (Denial of motion for a new trial - yes. Others are usu not final judgment)
If no, must file appeal within 30d from final judgment entered.
Exceptions: May appeal even though not final review: 1) interlocutors review: orders granting/modifying/refusing preliminary or permanent injunctions. 2) collateral order: appellate court has discretion to hear ruling on issue if a) distinct from merits of the case, b) involves important legal question, and c) is essentially in reviewable if parties must await a final judgment. 3) when >1 claim and court finds no reasonable reason to delay (if has counterclaim in case, original case is not appealable bc still pending. However, court can still direct entry if final judgment on the counterclaim and allow appeal of issue now). 4) class action: court has discretion (not right) to review. Must file within 14d of order.
**Standard of review: -question of law (content of jury instructions): de novo (no reference to the trial judge) - (both jury and non) jury trial: question of fact: Affirm unless obviously wrong/reasonable ppl couldn't have made that finding. - discretionary matters: on a non-abuse of power standard. Otherwise will affirm (eg. Decision whether to give Jury instructions)
-no reversal if harmless error (you're not entitled to a perfect trial)
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Preclusion -claim preclusion (res judicata) -issue preclusion (collateral estoppel) |
**Preclusion rule: if case 1 and case 2 are in state/fed court, court in case 2 applies the preclusion law if the judicial system (fed/state) that decided case 1.
Claim preclusion: precludes if 1) same claimant - same defendant (same P to same D)(notice if opposite P&D, still might get dismissed bc of compulsory counterclaim!) 2) case 1 ended in valid final judgment on the merits - this is true even if you LITIGATED nothing. *not "on the merits": -Jurisdiction -venue -indispensable parties 3) case 1 and case 2 are the same claim -majority view: same T/O -minority view: personal injury and money damages are diff primary rights (essay)
Issue preclusion: "I PAWN issue, it will be precluded" - Identical issue -- Party in the 1st case can be precluded against -Actually LITIGATED issue in the first proceeding -Waived assertion of rights by failing to litigate in the first proceeding -Necessary issue to outcome *claim preclusion: same P to same D, doesn't require litigation. *issue preclusion: as long as one person was a party (or representative in class proceeding!) in the prior proceeding
*esaay: 1) if nonmutual DEFENSIVE issue preclusion (you're not party in case 1 and is D in case 2:usually issue preclusion 2) nonmutual OFFENSIVE issue preclusion (you're not party in case 1 and P in case 2): usually NO issue preclusion (it would be unfair if, there were multiple cases re issue, sometimes the D in case 2 would be liable and sometimes would not, and the issue is precluded). ***Factors: - D in case 2 had full and fair opportunity to litigate in case 1 - D in case 2 could foresee multiple suits - P in case 2 could not have easily joined in case 1 -there are no inconsistent findings on the issue. |
