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216 Cards in this Set

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1
Scope and Purpose of Rules: States that the FRCP governs the procedure in the US dsitrict courts in civil suits.
2
One form of action: All actions should be known as "civil actions"
3
Commencement of action: A civil action is commenced by filing a complaint with the court
4
Summons: How summons should look and when to summon
4f
Service upon individuals in a foreign country: Service may be attained by an internationally agreed means (Hague Convention), through an official channel in that country or to the person himself so long as it does not violate an international agreement.
4k
Territorial limits of effective service
4k1a
Territorial limits of effective service: Federal District Court has personal jurisdiction if the state court where the DC is located has PJ
4k1b
Territorial limits of effective service: Fedearl service for personal jurisdiction is satisfied for a federal court if the party joined under rule 14 or 19 is served within a judicial district and within 100 miles of the summoning district.
4k1c
Territorial limits of effective service: (not tested) One who is subject to a federal interpleader.
4k1d
Territorial limits of effective service: Federal Personal jurisdiction may be allowed when authorized by Statute.
4m
Time limit for service: Service must be made within 120 days after the filing of the complaint unless the plaintiff shows good cause for the failure.
4.1
Service of other process: How processes other than a summons should be served (there are only a few of these.)
5
Serving and Filing pleadings & other papers: How and when to serve pleadings
6
Time
6a
Time: Computation: The date of the act is not included; the last day is included in the computation
Time: When the total time is less than 11 days, Sat, Sun & holidays (Rule 77c) shall be included
7
Pleadings allowed; forms of motions: What pleadings do (complaint & answer), how to motion, what goes in a motion.
7.1
Disclosure statement: Who files the disclosure (non gov corporate party to ID parent company w/stock) & timing
8
Genearl Rules of Pleadings
8a
Claims for relief: Pleadings must have a short & plain (S&P) statement of: jurisdiction, claim, relief
8b
Defenses; Form of denal: S&P defenses to each claim & admit or deny averments. No knowledge = denial.
8c
Affirmative Defenses: Affirmative defenses must be named in the original answer or they will be waived under 12(d)
8d
Effect of failure to deny: Averments (answers) are admitted when not denied in the responsive pleading.
8e
Pleading to be concise and direct; consistency: When there are multiple statements and at least one is sufficient, total pleading is not made insufficient.
8(e)(2)
Pleading to be concise and direct; consistency: A party may state as many sepearte claims or defenses regardless of consistancy
9
Pleading Special Matters: Deals with the need and how to aver special things such as capacity to or to be sued, fraud, etc
10
Form of Pleadings: What the pleading form should look like (names, captions, paragraphs etc). Look at form 9 for inspiration. Circumvent: due process, rules enalbling act (right to privacy, no modify substnative right), combo deal.
11
Signing of pleadings, motions, and other papers; Representations to court; Sanctions
11a
Signature: Every written motion shall be signed, with contact info, by at least 1 attorney or the party. No = stricken
11b
Representations to Court: All representations are in good faith (ie not improper, warranted by law, supported by evidence, etc)
11c
Sanctions: The court may sanction the attorneys firms or parties for violations 11b .
11c1a
Safe Harbor: There will be sanctions unless the challenged paper is not withdrawn or appropriately corrected within 21 days after service of the motion.
11c1b
Nature of Sanction; Limitations: What kind of sanctions are permissible and how (directives, monetary sanctions, etc)
11d
Inapplicability to Discovery: This rule (including sanctions) is not applicable to disclosures and discovery requests.
12
Defenses and Objections -- When and How presented -- By pleading or Motion -- Motion for judgment on the pleadings
12a1
When Presented: Unless statute state otherwise, D shall serve an answer within 20 days of being served. The Waived Summons (4d)'s timing is stated here as well.
12a2
A party served with a cross claim shall answer within 20 days after being served.
12a3
Timing for resonse for a US agent is 60 days
12a4
Timing for response of thouse not otherwise mentioned
12b1
Lack of jurisdiction over the subject matter: Look to see if there is a fedearl question under 28 USC 1331 or if there is Diversity under 28 USC 1332 and then see if it survives 28 USC 1367, Supplemental Jurisdiction.
12b2
Lack of jurisdiction over the person/Personal Jurisdiction
12b3
Improper venue: Look to 28 USC 1391
12b4
Insufficiency of process: Look to rule 4a and form 1 on pp 97. Otherwise you will be dismissed without prejudice.
12b5
Insufficiency of service of process: Look to rule 4e1: it must be consistant with the forum state where the court is and where the defendant is. 4e2: you can serve them personally or at their dwelling with someoen of suitable age or discretion. 4d:Defendant has a duty to waive service to avoid unecessary expense or service.
12b6
Failure to state a claim upon which relief can be granted: Framework: 1)No cognizable claim (dioguardi, conley). 2) Insufficient facts (form 9). 3)Invalidates on its face (bower)
12b7
Failure to joina party under Rule 18.
12c
Motion for judgment on the pleadings: A motion for judgement on the pleadings may be made after pleadings are closed, but not as to delay the trial.
12d
Preliminary Hearings: The 12b's shall be heard before trial on application unless the court orders otherwise.
12e
Motion for more definite statement: For a pleading that is too vague or ambigious. The motion shall point out the defects and desired details. If not obeyed within 10 days, the court may strike the pleadings or make such order as it deems just.
12f
Motion to Strike: Within 20 daysafter service, the court may strike any insuffcient defense or redundant, immaterial, impertinent or scandalous matter.
12g
Consolildation of Defenses in MotionConsolildation of Defenses in Motion: A party can join motions but cannot amend an omission of a defense or objection then avaliable.
12h
Waiver of preservation of certain defenses: What you do when you don’t or forget to bring up a defense or objection
13
Counterclaim and Cross-claim
13a
Compulsory Counterclaims: A compulsory counterclaim must be stated at the time of the pleadings and arises out of the same Transaction or Occurance that is the subject matter of the opposing party's claim.
13b
Permissive Counterclaims: A permissive counterclaim does not arise out of the same transaction or Occurrence that is the subject matter. This can be made at any time.
13c
Counterclaim exceeding opposing claim: A counterclaim has no affect on the recovery of the opposing party.
13d
Counterclaim against the United States: You cant counterclaim against the United States
13e
Counterclaim maturing or acquired after pleadings: A claim matured or acquired by the pleading may be presented with the court's permission
13f
Omitted Counterclaim: How an omitted counterclaim is amended
13g
Cross-Claim against Co-party: A cross claim against a co-party must arise out of the same T&O or relate to any property that is the subject matter of the original action.
13h
Joinder of Additional Parties: Parties aside from thouse in the origional action may be parties in a counterclaim or cross claim in accordance with rules 19 and 20
13i
Separate Trials; Separate Judgements: If the court orders sepearte trials under Rule 42b, the judgments are independant of the original claims
14
Third Party Practice
14a
When Defendnat may bring in Third Party: May implead if: 1)non party. 2)within 10 days of being served, or with leave of court. 3) within the 3 classes of indeminification (Contribution Statute, Insurance-like, Respondiat Superior). 4) the claim is contingent (or special or derivitive) upon the outcome of the suit
14b
When Plantiff may bring in Third Party: Under the same rules that apply to the defendnat.
14c
Admiralty and Maritime Claims: Just deals with sea stuff
15
Amended and Supplemental Pleadings
15a
Amendments: A pleading may be amended: 1)Freebee--once before response or within 20 days if cannot reply. 2)if Justice so requires. 3)Or by written consent by the averse party. [Justice so requires when the claim has 1)No unreasonable delay. 2)No futility. 3)No prejudice.] Response to the amendment can be within the time remaining for the response to the origoinal or within 10 days after the amendment's service
15b
Amendments to Conform to the Evidence: Successful amendments will be treated as if they ahd been raised in the pleadings
15c
Relation back of amendments: Allowed to related back to the date of the original pleading when 1)the state law allows relation back (state law claim;state allows relation back]. 2)the added Claim or Defense arose out of the conduct, transaction, or occurrence in the original pleading. 4)Change of party or naming of the party if if same T&O or conduct and (a) new party had notice of complaitn within 120 days of original filing (notice can be inferred through attorney, news etc) and (b) the new party must have known, but for a mistake, that their name would have been on the complaint.
15d
Supplemental Pleadings: The party must motion and the court permit spplemental pleadings for T&O or events happened since the date of the pleading
16
Pretrial Conferences; Scheduling; Management: NOTE: No 16d, 16e included in this
16a
Pretrial Conferences; Objectives: The court may call for conferences between the parties
16b
Scheduling and Planning: The judge shall order a scheudling meeting within 90 days after the appearance of a defendnat and 120 days after the complaint has been served on a defendant.
16c
Subjects for Consideration at Pretrial Conferences
16f
Sanctions: The juge may sanction if a party of attorney fails to obey a scheduling or pretrial order, etc, upon motion or the judge's own initiative
17
Parties Plantiff and Defendant; Capacity
17a
Real Party in Interest: Every action shall be prosecuted in the name of the real party in interest/the one entitled to the right. The action cant be dismissed on these grounds untill a reasoanble time has been allowed to react to this objection. Cause of action
17b
Capacity to Sue or be Sued : The capacity to be sued are goverened by the laws of individual's domicile/State. Are there any weird entites that can or cant be sued (students of Main's civ pro class). Concerned with the entity.
17c
Infants or Incompentent Persons: Another can act for an infant or incompentant person.
18
Joinder of Claims and Remedies
18a
Joinder of Claims : You can join as many claims as you want.
18b
Joinder of Remedies; Fraudulent Conveyances: If a claim is cognizable only after another claim has been prosecuted, the two may be joined.
19
Joinder of Persons Need for Just Adjudication: Parties that need to be joined in order to adjudicate shall be joined.
20
Permissive Joinder of Parties
20a
Permissive Joinder : Persons and parties may be joined if action/claim for relief arises out of the same T or O and Law or Fact.
20b
Separate Trials : May separate to prevent a party from being embarased, delayed, put to expense, or to prevent delay or prejudice
21
Misjoinder: Misjoinder is not a grounds for dismissal. Any claim may be severed and proceeded on seperately.
22
Interpleader--Not Tested: Claims against P may be jionded as D when claims subject P to multiple liability--Not Tested
25
Substitution of Parties: How to replace the the parties in events such as death, incomptency or transfer of interest, etc.
26
General Provisions Governing Discovery; Duty of Disclosure
26a1 p1
Required Disclosures; Methods to discovery additional matter: Initial Disclosures: 1)Contact Info. 2)Relevant documents. 3)Damage Computations. 4)insurance agreements
26a1 p2
Required Disclosures; Methods to discovery additional matter: The disclosures must be made within 14 days of a Rule 26f conference (21 days before 16b (90 days before D appearance or 120 after D was served))
26a2
Disclosure of Expert Testimony: All experts must be disclsosed 90 days before trial (or 30 days after disclosure for rebuttals only)
26a3
Pretrial Disclosures: Evidence for trial that must be disclosed: name and contact for witnesses and ID of documents
26a4
Form of Disclosures: All disclosures must be in writing, signed and served.
26a5
Methods to Discover Additional Matter: Discovery may be obtained by: depositions (oral & written), written interrogatories, inspections of documents or property, physical and mental examinations and erquests for admission.
26b
Discovery Scope and Limits
26c
Protective Orders: Upon motion, the court may make orders protecting a party or person from annoyance, embarrassment, oppression, or undue burden or expense such as (and a list is given). This is done if you don’t want to comply.
26d
Timing and Sequence of Discovery: A party may not seek discovery from any source before the parties have conferred as required by Rule 26f
26e
Supplementation of Discolsures and Responses: A party must supplement or amend disclosures or responses if there is a change in some material respect.
26f
Conference of Parties; Planning for Discovery: Parties must meet to make arrangements for disclosures or settlements at least 21 days before the 16b scheduling conference. Parties must submit a written report of the meeting within 14 days after the confernce.
26g
Signing of disclosures, discovery request,s responses, and objections: Must be signed by an attorney or the party.
Proposed Rule 26 amendment
Amendments dealing with electronic information
30
Depositions Upon Oral Examination. Advantages: Spontaneous. Disadvantages: Expensive and don’t know whether to do this earlier or later on/person may forget. Can only depose someone once
31
Depositions Upon written questions
33
Interrogatories to Parties. Advantages: Cheap and simple. Disadvantages: Responses will probally be written by a lawyer. Santized. Not to exceed 25 questions in total.
34
Production of Documents and Things and entry upon land for inspectiona nd other purposes: Advantages: They have to give you the smoking gun. Disadvantages: They can give it to you directly or make it difficult by giving you too much information. .
35
Physical and Mental Examination of Persons
36
Requests for Admission: We can get admissions or denials on the questions of the case.
37
Failure to make disclsoure or cooperate in discovery; Sanctions: How to compell discovery and/or give sanctions for evasive or incomplete discoosure, answer or response
38
Jury Trial of Right
38a
Jury Trial of Right Preserved: The right is given by a Statute of the United States or the 7th amendment of the constitution.
38b
Demand for Jury Trial of Right: Must be served in writing anytime after commencement of the action and no later than 10 days after serving of last pleading directed to such issue. Must comply with rule 5d (rule of how to serve). Look to the Terry Test to see if this is applicble (if like the 18th century writs and asks for legal relief)
39
Trial by Jury or by the Court: If its not a jury trial, then it’s a court trial.
41
Dismissal of Actions: The parties can dismiss its own actions before an answer (without prejudice) or the court can dismiss actions. Good for avoiding claim preclusion.
42
Consolidation; Sepearate Trials
42a
Consolidation: A joint hearing or trial may be order for actions involving a common questino of law or fact to avoid unnecessary costs or delay
42b
Separate Trials: The court may order separate trials for convenience or to avoid prejudice.
47
Selection of Jurors
49
Special Verdicts and Interrogatories: 49a:Special Verdict--judge gives a set of questions for the jury to answer. 49b:General Verdict--Judge gives one or two simples questions to answer.
50
Judgement as a matter of law in jury trials; alternative motion for new trial; conditional rulings: Note: same as Directed Verdict
50a
Judgement as a matter of law/Directed Verdict: Done if there is no legally sufficient basis for the jury to find for that party on that issue. Done before submission of case to the jury
50b
Judgement Notwithstanding the verdict/JNOV: If there is a jury verdict but the judge thinks that the jury made a gross deviation from the law, he can order a new trial.
51
Instructions to Jury: Objection: How to give instructions and objections to the jury. Note this for jury controls.
52
Findings by the court; judgments on partial findings: 52c: Directed verdicts can also occur for non jury trials.
54
Judgments; Costs: What a judgement is and how costs are appropriated
55
Default: If there is no reponse from either side, the court may enter a default judgement unless it’s the governemnt or the person is an infant or incompetant. Note that you must respond within 20 days under rule 12a
56
Summary Judgment
56a
For Claimant: party seeking to recover upon a claim may move for summary judgement 20 days after the commencement of the action.
56b
For Defending Party: D may move for summary judgement at any time.
56c
Motion and proceedings thereon: The motion shall be served at least 10 days before the time fixed for the hearing.
56d
Case not fully adjudicated on motion: For a case with multiple claims, a summary judgement against one does not necessarily kill the entire thing.
56e
Form of affidavits; Further tesimony; Defense Required: All affidavits shall be made on persoanl knowledge and be used as evidence to see if there is a genuine issue for trial.
56f
When affidavits are unavaliable: The court may allow more time for discovery
56g
Affidavits made in bad faith: Bad faith affadavits presented under this rule may cause the presnting party to pay for extended attorney fees or be adjuded guilty of contempt.
58
Entry of Judgment: How to enter, and timing for a [final] judgement and
59
New trials; Amendment of judgments: how and when new trials may be filed for
60
Relief from judgment or order: Clerical mistakes may be corrected by the court at any time or on the motion of the party. Conditions for relief from judgement are listed here as well (60b:new & previously undiscoverable evidence, fraud, void judgment, etc)
60a
Clerical Mistakes: Clerical mistakes may be corrected by the court at any time or on the motion of the party.
60b
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. : Relief from judgement can be granted if there has been a mistake, new & previously undiscoverable evidence, fraud, etc. The grounds must be asserted within on eyear and ones that can be raised within a reasonable time. The three conditions for using newly discovered evidence: 1)Evidence has to have existed at the time of trial. 2)You must prove that you were unable to discover that evidence. 3)This will/would alter the result.
61
Harmless Error: The court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
64
Seizure of Person or Property: Methods for securing satisfaction through seizure of person or property
65
Injunctions
65a1
Preliminary Injunctions: No preliminary injunction shall be issued without notice to the averse party
65b
Temporary Restraining Order; Notice; Hearing; Duration: How a temporary restraining order may be made: (only if there is irreparable harm and attorney certifies that notice should not be requuired. It will not exceed 10 days unless the court says otherwise and may be contested by the other party upon its notice.)
70
Judgment for specific acts; Vesting title: Says that if the judgment directs a party to do something but the party does not do it. In these cases, the court will attach or sequester the disobediant party's property, give someone else the task and have the disobediant party pay for it. The court may also hold the party in contempt.
84
Forms: The forms contained in the Appendix are sufficient under the rules and indicate the simplicity and brevity necessary.
Form #9
Complaint for negligence: pp 101, is a brief and sufficient statement constituting a cause for action.
How to deal with abuses of discovery
1)Deal with it. 2)Rule 37: to compel (judge gets it for you). 3)Rule 26c: protective order
Celotex
Summary Judgement: point at the empty box from an easy chair! (you may want to talk about whether the judge likes or does not like summary judgement)
Matsushita
Summary Judgement: weigh evidence--"Noone will believe this expert!"
Liberty Lobby
Summary Jugement: take a heigher pleading standard--the evidence has to be clear and convincing.
the 4 reasons why a judge may motion for a new trial.
1)Judge allowed evidence that the jury should not have heard. 2)Judge cannot see how the jury can have come up with the ruling/Rule 59(a)(1). 3)Judge does not trust that the jury process is working as it should/jury misconduct (bribes, etc). 4)Judge does not think taht teh verdict is consistant with the weight of the evidnce.
Bifurcation & Trifurcation
Sepeartion of claim into smaller parts, including on issues or on elements of a claim. Break it into stages or parties.
remittitur
Judge is inclined to grant D's motion for a new trial unless P agrees to accept less money.
Additur
Judge is inclided to grant P's motion for a new trial unless D agrees to pay more money.
The 6 ways of demonstrating personal jurisdiction
1)General. 2)Specific. 3)In Hand/In State. 4)Waiver. 5)Consent. 6)Status
Elements of General Personal Jurisdiction
1)Significant, Substantial, Systematic Contacts (SSSC). 2)Fair Play and Substantial Justice (SPSJ)
SSSC, Elements of Consideration for busniesses
State of incorporation (SOL), Principle place of Business (PPB)
Fair Play and Substantial Justice, Elements of consideration
1)Interest of Party. 2)Interest of forum state. 3)Interests of the other states. 4)Convenience. 5)Social policy.
Elements of Specific Jurisdiction
1)Arises out of(ARO) or Relate To(RT). 2)Minimum Contacts. 3)Long Arm Statutes. 4)Fair Play and Substnatial Justice.
Tests for Minimum Contacts
1)Unilateral Act--Hanson--NOT MC! 2)Purposeful Availment (McGee--one customer is not enouph). 3)Reasonably forseeable--to be held in court (World Wide Volkswagen). 4)Intententional Torts--Effects (Caulder). 5)Contracts with ongoing business relationship(Burger King). 6)Stream of Commerce+ (Asahi)
In Hand/In State, Elements of consideration for
This must have been done: 1)knowlingly & 2)Willingly. Exceptions: Fraud, Force
Waiver, Elements of consideration for
you must assert a 12(b)(2) defense, otherwise you will lose it under 12(h)(1)
Consent, Elements in consideration for
Must conform with: 1)Fundamental fairness. 2)Reasonableness. 3)Done in good faith. Consenta can be exclusive (constrains both parties to sue in one specific state) or non exclusive (asserts one forum where the plantiff can sue, and the defendant must comply--more fair than exlcusive for individuals suing the company)
Status, Elements in consideration for
Divorce only. If money or equity is involved, tehn its not about status.
V
Federal: No person shall be..deprived of life, liberty, or property without due process of law
VII
Jury trial for 1)Suits at common law. 2)Value in controversy exceeding twenty dollars !! No fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
XIV
State: No state shall deprive any person of life, liberty, or property without due process of law
Considerations for Due Process
1) Private Interest. 2) Risk of Error (how many erroneous deprivations will this fix?). 3) Government Interest.
Framework for Injunctions
1) Is there an adequate remedy at law (Can I fix it later with money?)? 2)Will there be irreparable harm to one side? 3)Is it likely that P will win? 4)Will the public interest be served if I grant it?
28 USC 1331
Federal Question: First prong of subject matter jurisdiction: The Fedearl Courts (District Courts) shall have Subject matter jurisdiction (origional jurisdiction) where there is a federal question (of all civil actions arising under the Dconsittuion, laws, or treaties of the United States. )
28 USC 1332
Diversity of Citizenship; Amount in controversy; Costs: SMJ Prong 2: There is Fedearl Subject Matter Jurisdiction if there is 1)complete "Strawbridge" diversity and 2)the amount in controversy exceeds $75,000
28 USC 1367
Supplemental Jurisdiction: SMJ Prong 3
1367a
Any party or claim may be added by any party if it arises out of the same case or controversy as the claim in which there is original jurisdiction (Gibbs)
1367b
No SMJ if: (1) Original Jurisdiction = solely on Diversity & (2) this was a claim by an original plaintiff & (3) this is a defendant is named in rules 14 or 20
1367c
Discretion: the court has discretion to hear or to decline the case. This is not an issue under 1331 or 1332. (Gibbs). May decline if 1)Complex state law, 2)State law dominates the claim over which the federal court has original jurisdiction 3) District court has dismissed all claims 4)exceptional situations. Note: if you toss out the fedearl question, you dont have to toss out the state question with it.
1367d
Timing for this action. Also has a clause about extending the statute of limitations. This is arguably unconstitutional because you are taking a right away from the state.
28 USC 1391
Venue generally
1391 a1 & b1
Venue is proper in a district if one defendant resides in that district and the other resides in the state
1391 a2 & b2
if a substantial part of either the events or omissions giving rise to the cliam or the property that is subject to the action is within that district.
1391 a3 & b3
Venue is proper if there is any defendnat that is subject to peraonl jurisdiction and there is no other district where the action can be brought.
1391c
Corporations: corporate entites reside where there is personal jurisdiction at the time the action si commenced.
1391d
Aliens: Aliens can be sued in any district.
28 USC 1441
Actions Removable Generally
1441a
If the fedearl courts have subject matter jurisdiction (original jurisdiciton), the case may be removed by the defendant from the state to the federal courts.
1441b
An action may be removed from state to federal court if the claim or right arises out of a federal question (28 USC 1331). D cannot remove if filed in his forum state.
1441c
Trick: When a federal question claim is joined with non removable claims, the whole case may be removed even though it may not have been able to be filed in federal court in the beginning. (joinder would be under rule 18). If there are multiple defendants, they all have to agree for 1441.
28 USC 1446
Procedure for Removal
1446a
A defendant desiring to remove an action from a state court shall file in the district court with a short and plain statement of the grounds for removal. It also must be signed and such pursuant to rule 11.
1446b
1) Notice of removal shall be filed within 30 days after the reciept by the defendant or within 30 days after the service of summons upon the defenddant, whichever is shorter. (You must remove an action within 30 days or else that opportunity to remove is waived.). 2) If P addes a federal question or has new found diversity, you have 30 days from then to remove the case. 3)If teh case is more than one year old, then you cant have removal from new found diversity. !! If the case stated in the initial pleading is not removalbable, a noice may be filed within 30 days after receipt by the defendant. !! A case may not be removed on the basis of diversity if it is more than 1 year after the commencement of the action.
28 USC 1447
Procedure after removal generally
1447a & 1447b
The state court handles the paperwork after removal
1447c
A motion to remand based on anything other than subject matter jurisdiction may be made within 30 days after the fililng of the notice of removal.
1447d
A remand is not reviewable unless it’s a civil rights action
1447e
After removal, if the plantiff seeks to join additional defendants that defeat Subject Matter Jurisdiction, the court may deny the joinders and remand the case.
28 USC 2071
Rule-Making power genearlly: The courts may make rules
28 USC 2072
Rules of Procedure and Evidence; Power to prescribe: The Supreme court makes the rules of judicial procedure for the federal courts.
28 USC 2074
Rules of Procedure and Evidence; Submission to Congress; Effective Date: The rules of judicial procedure that the Supreme Court makes must be approved by congress.
28 USC 2077
Publication of Rules; Advisory Committes: Procedural rules shall be published and advisory committes studying the affects of the rules created.
Venue options when Venue is proper
1)Proceed with litigation. 2)Transfer under "28 USC 1404a: change of venue" for (a)Convenience of parties or witnesses and (b)the interests of justice. 3)Dismiss under the doctrine of forum non conveniens either (a) at the courts discretion--the case should really be in india or (b)In order to avoid oppression arising from teh plantiffs choice of forum, so long as we have an alternative forum.
Venue options when Venue is improper
1)Dismiss the case under a 12(b)(3) and/or 28 USC 1406. 2)Transfer the case under 28 USC 1406 if its in the interests of justice.
Erie Doctrine (Erie case)
Federal Courts must apply the substantive common law of the statute to diversity cases, but still apply federal procedural rules for procedural questions. Twin aims: 1)prevent "forum shopping". 2)Avoidance of the inequitable administration of laws.
York
Things that can change the outcome of a case are substantive. (Erie Doctrine)
Byrd
2 part test: 1)What are the policy reasons for the staet court requirements?--(if its important, we should accept it. If its not important, then throw it out). 2)Is it Bound up (state created rights)=substantive or Mere Form and Mode(paperclip stuff)=procedural.
Hanna
Things in the FRCP are presumptively procedural. The FRCP will outweigh a state thing.
Walker
Construe the FRCP strictly and see if its on point. If not, then apply the state law.
Erie Framework
Fed Q or Diversity-->What is the source of the federal procedure-->Is there a direct conflict with FRCP [Hanna, apply FRCP if its on point] or can they be compromised [Walker, Go with State law. Respect state law by manipulating federal]. If there is no FRCP at all, [Byrd Ballancing, policy or bound up/form n mode.]
Stare Decisis
Prior caselaw has precedential authority in the interpretation of the law.
Law of the Case
We will not visit cases or issues that have already been determined. More for appellate procedure. Can be overrulled for policy reasons.
Claim Preclusion, Elements of
A claim can be precluded from relitigation if 1)There is a prior suit where there has been a final judgment on the merits. 2)There is the same claim. 3)There are the same parties (or were virtually represented by the same parties).
Q: what if you were a party to a case that was about to lose because your partner was a dolt but you still want to fight it out?
Move for Rule 41: voluntary dismissal. But you cant do this if an answer or a dismissal has already happened.
Issue Preclusion, Elements of
We will not revisit issues if 1)There has been a final judgement on the merits. 2)the prior case has been fully and fairly litigated/"actually litigated". 3)the prior case has been necessariliy decided (can be implicitidly decided--Hoult).
Non Mutual Defensive Collateral Estoppel
Used by the defendant to proteect themselves against the plaintiff regarding issues that were previously litigated against another defendant. D2 says to P: "hey this was already decided against D1!"
Non Mutual Offensive Collateral Estoppel
Used by a plaintiff to prevent relitigation by a defendant who lost against another plaintiff on the same issue. New Plantiff says "Ha! I win because you don’t get the chance to relitigate since you already lost this before." 2 concerns: 1)If this is a "wait and see palntiff" (if you could have joined the initial suit but did not, you cant bring the suit a second time). 2)Fairness (The stakes may be vastly different for teh two cases. If there are not lots of new defenses, we may allow them to litigate).