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182 Cards in this Set

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What is the threshold question with Erie problems?
Is the case based on diversity of jurisdiction
What are the twin aims of the Erie decision?
1. Discourage forum shopping
2. Discourage an inequitable distribution of the laws amongst state/federal forums
Hod did Guaranty Trust determine whether a rule was procedural or substantive?
It developed the Outcome determinative test. If application of the Federal law/rule would significantly affect the outcome then it was deemed to be substantive.
What was the problem with the Guaranty OD test?
Almost any rule could be found to be OD at some point in the proceedings
What is part 1 of the Byrd v Blue Ridge test?
1. Is the state rule bound up with state created rights and obligations that go beyond the scope of the Federal gov’ts mandate? If the answer is yes then the State Rule must be appliee, If no go to step 2
What is part 2 of the Byrd v Blue Ridge test?
Is the application of the rule OD? If no then apply the federal rule, If Yes go to step 3/
What is the 3rd part of the Byrd v Blue Ridge Test?
If the application of the rule is OD, is there a countervailing federal interest sufficient to allow for the application of the federal rule? If yes, then the fed will apply, if not then state.
What is the Hanna Part 1 test form Hanna v PLummer?
THe OD test must be applied with the TWIN AIMS OF ERIE in mind. Will it encourage FS, or an inequitable distribution of the laws?
How did the COurt in Hanna decide if FS/Inequitable distribution of the laws would be an issue under the Twin aims test?
THere must be a substantial alteratio in the enforcement of a state created right in order for them to become an issue
What is the Hanna Part 2 test?
1. Is there a DIRECT COLLISSION between the federal and state law? Can they co-exist b/c the federal law is narrower than the states?
2.If there is a direct collission then the federal rule must apply UNLESS it violates the REA
How can a Rule violate the Rules Enabling Act?
If it enlarges, modifys, or abridges a state created substantive right
What did Harlan's concurence state in Hanna?
THe aims of Erie show that a rule is substnative if it was meant to affect people's behavior before the cause of action arises
How does Marshall shift the analysis of the Erie question in Stewart v Ricoh?
He moves from the direct collision language of Hanna Part 2 to a "Sufficently broad" to cover analysis as far as the conflict between the federal and state rules
What is the first step in an Erie analysis?
Decide if the law is purley substantive? If the answer is yes, then the State rule will apply
If the rule/statute is procedural or arguably so what question must be asked in the second step of an Erie analysis?
Is there a conflict between the federal and state laws. If the answer is no, then they can both be applied.
Once it is detemrined that there might be a conflict between a federal and state law, what is the next question?
Is it a judge made rule or a statute/federal rule?
If the conflicting rule is judge made what are the 3 possible analyses to decide which should apply?
1. Hanna Part 1- OD with twin aims in mind
2. The bYrd test
a. Is the rule bound up with state made rights?
b. Is it OD(maybe use the Hanna test here)
c. Is there a countervailing federal interest enough to allow for enforcement
3. Straight OD test
If it is a federal statute or rule colliding with a state rule , how do you analyze for Erie?
Basically apply Hanna Part 2-First ask if the statute/rule is broad enough to cover the issue at hand. If no, then they can both exist. If yes then
a. For a statute- you must decide if it is constitutional
b. For a rule- it must not violate the REA and the constitution.
What starts a case?
A filing of the pleadings/complaint
UNder Rule 7(a) what constitutes a pleading
1.Complaint
2.Answer
3.Reply to counterclaim
4.Answer to a cross claim
5.3rd party complaint
6.3rd party answer
What pleadings are governed by Rule 8(a)?
Original claim, counter claim, cross claim, and 3rd party claim
What is required under Rule 8 (a)?
1.Short and plain statement of why the court has jurisdiction
2.Short and plain statement of the claim showing that the pleader is entitled to relief
3.Demand for judgment
What is the standard established by Conley v Gibson?
1. The complaint should not be dismissed unless there is no set of facts that the P can prove that will support relief
What are the two ways that a complaint can fail to state a claim?
1. Factually- the facts alleged do not constitute a violation of the law
2. Legally- Even if the facts alleged are true, there is no law that protecte against such a violation
Is it possible to plead too many facts?
Yes, see American Nursing Assoc...
What are the three other procedural requirements for pleading discussed during class?
1. Must have a caption setting forth the name of the court, the title of the action, the file number, and a designation (what is the document) as in rule 7a.
2.paragraphs must be #ed.
and Limited, as far as practicable, to a statement of a single set of circumstances, per paragraph
3. Rule 10 C-Allows the complaint to adopt by reference all the claims in the numbered paragraphs
When can the court require heightened pleading?
ONly in the case of fraud. RUle 9(b) requires that the circumstances of the fraud must be stated with particularity, while the intent may be averred generally
How did the court in Schultea v Wood perform an end run around the heightened pleading requirment?
Court required the P to file a reply to the D's answer which announced an AD of qualified immunity. Because a reply to an answer is not included in 8(a) then the court could require particular facts be stated
Can a party plead things that are in conflict with each other?
yes, Pleading in the alternative is okay if the P is unsure about what is the actual state of the fact.
What is a check on pleading in the alternative?
Anyone who submits a pleading to the court that they know is faulty can be hit with Rule 11 sanctions
What can a D do before filing an answer to a complaint?
THey can file a pre-answer motion
What are the three parts of a motion?
1. Caption stating the motion and the relief sought
2. Brief in support of the motion
3. Certificate of service
WHat ahs to be served under RUle 5?
Everything except for the original complaint
Who is usually served under RUle 5?
If the person is represented by counsel then it goes to the attorney, unless the court orders otherwise
How may a party be served under RUle 5?
1. In hand, leaving it their office, or leaving it in their home
2. By mail
3. If the person who has no known address then by leaving it with the clerk of the court
4. If consented to, by delivering it by any other elecronic means
What are the seven 12 b motions?
1- lack of SMJ
2- Lack of PJ
3- Improper venue
4-Insufficiency of process
5- Insufficiency of service of process
6- Failure to state a claim
7- Failure to join an indispensable party under Rule 19
What is a 12e motion?
MOtion for a more definite statement
Whay file a pre-answer motion?
1. Delay the proceedings
2. some issues are threshold isues (PJ, SMJ, Venue)
3. Give more time to answer
Rule 12(a)(4) allows for ten days from beyond the decision on the motion to answer the complaint.
How long does a D have to file an answer
20 days if there is service, 60 days if service is waived
How do you count the days under Rule 6(a)?
Start counting on the daya after service is affected. If the last day of the period is a Weekend or a holiday or there is bad weather, then service is proper on the next non-weeekend/holiday/shitty weather day.
How are days counted under 6(a) if the time for reply is less than 11 days?
Only count business days.
What happens to the timing of the answer if the service is mailed, left with the clerk or done by electronic means?
Then you get three days added on to the end of the period.
What must be contained in the answer?
Party shall state in short and plain terms the party's defenses, party will also either admit or deny every cliam listed in the complaint
What must a D do if they can neither admit or deny an allegation?
State so, and this will count as a denial
What if part of an allegation is true and part is false, can a Party deny the whole thing?
No, they must state which part they admit and which part they deny
According to Rule 8(d) what happens if you do not effectively deny an allegation in the complaint?
THen you are deemed to have admitted it. Parties tned to throw in general denials to any claims not specifically admitted or denied to protect against this.
What are listed as AD's in rule 8(c)
accord and satisfaction, arbitration and award, assumption of the risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of C, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, SOF, SOL, waiver, AND ANYTHING ELSE CONSTITUTING AN AD OR AVOIDANCE
When can a party amend their complaint?
Once without reason if the other party has not filed a responsive pleading (not a motion), or if no RP is necessary the complaint can be amended within 20 days of service. 15a
Can a party amend their complaint if the other party ahs already filed a responsive pleading or the 20 dyas is passed?
Yes, by leave of court. Shall be freely granted when justice so requires.15 a
How long does a party have to respond to an amended pleading?
THe amount left to respond to the original pleading or 10 days whichever is greater.15 a
When does the amended pleading relate back for the purposes of the SOL?
Rule 15(c)1. If It is permitted by the law that provides the statute of limitations applicable to the action or,
2. The claim in the amended pleadings arose out of the conduct, transaction or occurrence set forth in the original pleadings
When can a party amend a pleading to change a party?
When the person received notice of the suit, and knew or should have knwon that they were the appropriate person who should have been sued.15(c)3
CAn a complaint be amended to add a party after judgment has been entered?
Yes, as long as the specifics of Rule 15 a ae folowed. Nelson v Adams
What claims are subjec to the joinder provision of Rule 18(a)?
Originl claim, counter claim, cross claim, or third party claim.
How many claims cna be joined under Rule 18(a)?
As many claims either as independent or alternate claims
What is the limit on the joinder of claims under 18(a)?
PJ, SMJ, and Venue
What claims are compulsory under RUle 13(A)
Any claim which AT THE TIME OF SERVING the pleading the pleader has against any opposing party, IF;
1.IT ARISES OUT OF THE TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT MATTER OF THE OPPOSING PARTY'S CLAIM &
2.IT DOES NOT REQUIRE FOR ITS ADJUDICATION THE PRESENCE OF 3RD PARTIES OF WHOM THE COURT CAN NOT ACQUIRE JURISDICTION
Can a D join other claims once a compulsory counter claim has been added?
Yes, under rule 18(a)
When is D relieved from having to raise a compulsory counter claim?
1.At the time the action was commenced it was the subject of another pending action
2.The opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim, and the pleader is not stating any counter claim under this rule
What is a permissive counterclaim?
A claim against the other party not related to the transaction or occurrence. D need not raise these claims
When can a person file a cross claim?
a. A pleading MAY state as a cross claim any claim by one party against a co-party ARISING OUT OF THE SAME TRANSACTION OR OCCURRENCE THAT IS THE SUBJECT MATTER EITHER OF THE ORIGINAL ACTION or OF A COUNTERCLAIM THEREIN or RELATING TO ANY PROPERTY THAT IS SM OF THE ORIGINAL ACTION
13(g)
Are cross claims compulsory?
NO, the person can file another law suit
Can a person be joined as an additional party based on allegations from a counterclaim or cross claim?
Yes, subject to rule 19/20. 13(h)
What is covered by Rule 11?
Every paper filed by the court
What are th four things asserted by filing a paper (under rule 11)
THAT TO THE BEST OF THEIR KNOWLEDGE, INFORMATION AND BELIEF FORMED AFTER AN INQUIRY REASONABLE UNDER THE CIRCUMSTANCES THAT-
1.It is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation
2. the claims defenses and other legal contentions theirein are warranted by EXISTING LAW OR BY A NONFRIVOLOUS ARGUMENT FOR THE EXTENSION, MODIFICATION, OR REVERSAL OF EXISTING LAW OR THE ESTABLISHMENT OF A NEW LAW
3.THE ALLEGATIONS HAVE EVIDENTIARY SUPPORT, OR IF SPECIFICALLY IDENTIFIED, ARE LIKELY TO HAVE EVIDENTIARY SUPPORT AFTER A REASONABLE OPPORTUNITY FOR FURTHER INVESTIGATION OR DISCOVERY
4.THE DENIALS OF FACTUAL CONTENTIONS ARE WARRANTED ON THE EVIDENCE, OR IF IDENTIFIED, ARE REASONABLY BASED ON A LACK OF INFO OR BELIEF
Rule 11(b)
Who can initiate Rule 11 sanctions?
a party to a case or a court
What are the possible sanctions?
b. Can be non-monetary reprimand, penalties paid into the court or an assessment of fees for the other party
Cna monetary sanctions be assessed against a party who is represented for a violation of 11(b)(2)( that the legal claims are warranted by existing law?
NO
Does Rule 11 affect notice pleading under Rule 8?
No, a layer just has to know that there are facts that make the claim warranted, THEY DO NOT HAVE TO PLEAD THEM
What is the threshold question for adding parties to a suit?
THey must meet the requirements of PJ, SMJ, and Venue in order to be added
What is rule 20?
Permissive joinder. Any party may be added to the suit if the claims arise out of the same transactionor occurrence, and there is at least one question of law or fact that is common to all of the parties.
What makes a party indispensible under Rule 19?
If Person issubject to service and who will not rob the court of JXN SHALL BE JOINED IF
i.W/O them relief can not be accorded among those already made parties (always ignored)
ii.The person claims an interest relating to the subject of the action and is so situated that the disposition in the persons absence may
1.Impair or impede the persons ability to protect that interest or
2.Leave any of the parties at risk for double, multiple, or otherwise inconsistent obligations(injunctive relief)
Once a party is condiered indispensible, can they be forced to join?
Yes, if they refuse as a P, then the court can bring them in as an involuntary D
what happens if it is not feasible to join a party?
The court must decide decide if the action should go forward w/o them or if it should be dismissed b/c the party is an indispensable party 19(b)
What are th factors a court will consider when determining if a person is indispensible?
a.To what extent will the judgment be prejudicial to the person or those already parties
b.The extent to which the court can by shaping the relief avoid/lessen the prejudice
c.Will a judgment in their absence be adequate
d.Will the P have an adequate remedy if the case is dismissed for non-joinder?
E.G. SOL questions
UNder RUle 14 when can a D implead a 3rd party?
If they claim that the person is or may be liable ot them if they are on the hook to the P, then they can bring in the person without leave of court AS LONG AS IT IS GOING OT HAPPEN WITHIN 10 DAYS OF WHEN THEY FILED AN ANSWER TO THE ORIGINAL COMPLAINT
14(A)
HOw does a D implead a person?
By filing a 3rd party complaint, once it is filed the D become the 3rd party P, and the implead person becomes a 3rd party D
What happens once a person has been brought in as a 3rd party D?
They have to answer the 3rd aprty complaint, and in the answer they may have to raise counter claims against the 3rd party P. THe 3rd party D can alos assert any claims against the P that it might have.
Can a P raise claims against a 3rd party D?
Yes, but if the case is based on diversity, there must be an independent basis for jurisdiction for the claims beyond the original claim.
Can a 3rd party D bring in someone that they think is liable to them?
Yes, if this happens the 3rd party D becomes a 4th party P.
Waht is interpleader?
When a party has seom money/property that might be subject to multiple obligations, they can file an interpleader suit by paying th emoney into the court and filing suit against the interested parties
What are the 2 sources for interpleader?
Rule 22 and 28 USC 1335
What are the differences between rule interpleader and statutory interpleader?
Rule interpleader is more stringent. It still requires that 1331 be met (complete diversity, >75k), and that Rule 4 be complied with. Statutory interpleader only requires that at least two claimants are divers, and that the amount in controversy exceed $500. It also allows for nationwide service of process to acquire jurisdiction.
When would a person be forced to use rule interpleader?
When there is diversity on either side of a lawsuit, but not between claimants.
When can a court order that two cases be consolidated?
When there are 2 cases within the same jxn that relate to the same question of law or fact. Rule 42(a)
When can cases be consolidated under 28 USC 1407?
They are consolidated fro pretrial purposes only. Aids in discovery ease for big lawsuits
What are the requirements for the multi party, multi forum jxn act?
1. There must be at least 75 people killed in a discrete location.
2. THere must be minimal diversity among those people killed.
What are the two types of intervention?
OF right and Permissive
When can a prty intervene as of right?
When a statute conveys the right to intervene or ii. When the applicant 1. claims an interest in the property or transaction which is the center of the dispute, and the applicant is so situated that 2. the disposition of the action may impede their ability to protect that interest, unless 3. it is adequately represented by existing parties Rule 24(1(a))
When does a party have the right for permissive intervention?
1. When a statuten convey a conditional righ to intervene or 2. When they have a question of law or fact in common
What is the jurisdictional problem with interveners?
a. Under 1367 a court will not have SUPPLEMENTAL jurisdiction over claims made by P’s against party’s who intervene, or of claims made by parties that are seeking to intervene under Rule 24 UNLESS IT IS STILL CONSISTENT WITH DIVERSITY
What is the standard of review for a denial of an intervention?
Abuse of discretion b/c only the trial judge has a feel for the case
What are included under the mandatory disclosures for Rule 26(a)(1)?
a.Name, address, phone # of each individual likely to have discoverable info that can be used to help the party
b.Copies, or descriptions with locations of documents that can be used to prove their case that are in possession, control or custody, unless they will be used solely for impeachment
c.Computations of damages claimed by the disclosing party
d.Insurance agreements
What is exempt from the Rule 26b mandatory diclosures?
i. Action for review on an administrative record
ii. Petition for habeas
iii. Action brought w/o counsel by a person in custody of the state
iv. Actions to quash/enforce a summons
v. Action by the US to recover benefit payments
vi. Action to collect student loans
vii. Actions to enforce arbitration awards
When must the Mandatory disclosures be made under rule 26?
wITHIN 14 days of the Rule 26 (f) conference unless stipulated by the parties.
What should be the basis for disclosures?
iii. Disclosures are to be made based on the info available at the time and they can not delay b/c they have not completed their investigation
1. Also can not withhold b/c the other party has not complied yet
Do parties have a duty to supplement disclosures made under rule 26?
Yes, Rule 26(e)
Beyond the mandatory disclosures what tools can be used?
1. Depositions
2. Interrogatories
3. Production of documents
4. Permission to enter upon land
5. Requests for admission
What is the scope of discoverable information?
IN general- Parties may obtain D regarding any matter not privileged THAT IS RELEVANT TO THE CLAIMS OR DEFENSES OF ANY PARTY, and 1. FOR GOOD CAUSE THE court may order discovery OF ANY MATTER RELEVANT TO THE SUBJECT MATTER involved in the action.
DOes the information sought need to be admissible at trial?
2. Relevant information need not be admissible at the trial if the D appears reasonably calculated to lead to the admission of admissible evidence
What is the defintion of relevant information?
a. any E having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without evidence
When cna the court limit the scope of discovery?
WHen the party is abusing the process b/c 1. THE DISCOVERY SOUGHT IS UNREASONABLY CUMULATIVE OR DUPLICATIVE OR IS OBTAINABLE FROM SOME OTHER SOURCE THAT IS LESS BURDENSOME OR EXPENSIVE
2. THE PARTY SEEKING D HAS HAD AMPLE OPPORTUNITY BY DISCOVERY IN THE ACTION TO OBTAIN THE INFORMATION SOUGHT
3. THE BURDEN OF THE D OUTWEIGHS THE BENEFIT
When does the burden outweigh the benfit for discovery?
3. THE BURDEN OF THE D OUTWEIGHS THE BENEFIT, TAKING INTO ACCOUNT:
i. THE NEEDS OF THE CASE
ii. AMOUNT IN CONTROVERSY
iii. PARTIES RESOURCES
iv. IMPORTANCE OF THE ISSUES AT STAKE
v. IMPORTANCE OF THE D IN RESOLVING THOSE ISSUES
When will a court issue a protective order limiting discovery?
when JUSTICE REQUIRES it TO PROTECT A PARTY FROM ANNOYANCE, OPPRESSION, OR UNDUE BURDEN OR EXPENSE
What are some of the recognized privileges?
a. Attorney Client
b. Doctor Patient
c. 5th amendment
d. Marital
e. Priest penitent
What is privileged under the A/C privilege?
a.a Communication
b.Between privileged parties
c.Without the presence of others
d.For the purpose of seeking legal advice
Will an offhand comment count toward the A/C privilege?
Not unless it is related to the legal advice that is sought
How can the A/C privilege be waived?
a.Voluntarily
b.By disclosing the information to another party that is not their att’y
c.May also be waived if it is disclosed inadvertently
i.Stack of documents hypo
d.P may be waived if the party does not comply enough with 26(b)(5)-
i.Must make the claim expressly
ii.Describe the nature of the documents, communications, or things not produced or disclosed in a manner that without revealing information itself privileged, will enable other parties to assess the applicability of the protection or the privilege
What are the two possible ways to assess the A/C privilege for corporations?
1. Control group test-Only those people who are able to make decisions for the company that implement the attorneys advice (minority rule)
2. Upjohn standard- i.If the communications are made by employees to counsel, at the direction of the corporate leadership
ii.Has to relate to the scope of the employee's work
iii.Must be kept confidential
What are the two types of work product?
Ordinary and opinion.
What is ordinary work product?
- Documents, depositions, other things produced for the trial that do not include the attorney’s thoughts/trial preparation
What standard must be overcome in order to get over the ordinary work product doctrine?
1.Must Show:
a.Substantial Need
b.Unable to find the information by other means
Rule 26(b)(3)
What constitutes opinion work product?
Mental thoughts, impressions, conclusions or legal theories prepared for trial.
What is the standard to overcome to force discovery of opinion work pruduct?
It is at least as mauch as that for ordinary work product plus something else. Some jxns never allow for this to be discovered, while others may allow it if the mental impressions of the lawyer are at issue in the case and the material is compelling. (Holmgren)
What must the documents be in order to be protected by the work product doctrine?
They must be prepared becuase of the real possibility of litigation
How many interrogatories are available to parties without leave of the court?
25
How long do parties have to respond to interrogatories?
30 days, don't forget about the 3 days added for mail service under rule 6.
Who can interrogatories be addressed to ?
Parties only
What is covered by Rule 34's requests for production?
documents or tangible things, requests to enter onto land
Who can be served with a request for production?
Parties only, non-arties must be served with a subpoena under RUle 45
How must documents be organized when delivered under RUle 34(b)?
As they are kept in the usual course of business OR orgaized and labeled to correspond with the categories of the request
How must a prty respond to a request for an admission if they cnan not deny the entire request?
A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder.Rule 36
When can a party give lack of information as a reason for failure to admit or deny under RUle 36?
unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny
WHat happens if the other party fnds out that you failed to admit/deny something which you knew?
They can get the cost of proving the item requested under RUle 37
Who can take a deposition?
Must be taken by someone authorized to administer the oath. Parties can stipulate a person to be available
28(a)
When can a person recording the deposition/administering the oath be disqualified for interest?
- If the person is a relative, employee, or has a financial stake in the matter can not be the reporter/person who swears the person in. RUle 28(c)
When does a party need to get leave of court to take a deposition?
After the 26(f) conference the parties do not need leave to take the deposition of a party unless the person is in prison or
1.When the D would result in more the 10 D’s being taken
(Flexible rule under the Fed system(
2.If the person has already been deposed
3.If the party seeks to get the D before the 26(f) conference. Court will give leave if the person is going to leave the country-
What kind of notice needs to go to a party to be deposed?
Parties need not be subpeonad, but thye need to be given notice of the time of the D and the manner in which it will be recorded.
HOw does the notice for deposition work for a corporation or governemental agency?
Notice gets served on the corp/governmental agency noting the issues to be covered, and they decide who is going to answer. No matter how many people they serve up to answer it still will only count as one D
What are the limits on objections made at a deposition?
i. Objections must be stated concisely . Person can be instructed not to answer only when necessary to preserve a privilege, enforce a limitation, or to present a motion under 30(d)(4)
What is the time limit on depostions?
7 hours in one day 30 (d) 2
When can the court impose an appropriate sanction for problems at at deposition?
iii. If the court finds impediment, delay, or other conduct has frustrated the examination of he deponent, it may impose an appropriate sanction 30(d)(3)
What should an attorney do if the other party is abusing the deposition?
iv. Person can call the court where the action is pending during a D and ask them to stop the D or limit the scope
What can the deponent do after the deposition?
Deponent has thirty days to review the deposition and o correct any mistakes of fact or transcription
What can a party use a deposition for at trial?
i.Contradict or impeach testimony of a witness
ii.May be used against a corp person by an adverse party for any purpose
iii.Can be used for any reason if the court finds
1.Witness is dead
2.Witness is more than 100 miles from the court and they have not been sent there by the lawyer
3.Witness can not attend b/c of age, illness, infirmity, or imprisonment
4.Party offering the D has not been able to procure the party's presence by subpoena
5.Exceptional circumstances, in the interest of justice, etc
HOw must errors in the notice of deposition be objected to ?
THye must be in writing and served on the aprty giving th enotice
When is an objection to taking a D b/c of disqualification of the officer before whom it is to be taken
- Waived unless made before the hearing begins or as soon as it is known to be appropriate
WHen are errors as to the taking of the dpeosition waived?
1.Obejctions to competency of witness is not waived unless t could have been corrected at the time of the D
2.Same for errors relating to the procedure of the D
3.Written q-Waived unless served in writing
Where must an aplication for an order compelling discovery under RUle 37 A go?
1.For party it goes to the court where the action is pending
2.For nonparty- goes to the court in the district where the D is being taken
WHat must a party show in order to get a motion to compel under 37(2)(a)?
Must show Good Faith effort to work it out w/o the court stepping in
What happens if a motion to compel is granted under RUle 37(4)
The court will grant expenses incurred in preparing the motion, unless they can show no GF effort to work it out.
What happens if a motion to compel is denied?
THen the moving party has to pay the non-moving party's expenses unless the motion was substantially justified or it would be unjust
Wha are the possiblel sanctions available to the court if the party fails to comply with an order by the court?
- If party fails to testify or obey an order the court may make the orders that are just
1. Matters regarding the order are taken to be established
2. Refuse to allow the disobedient party to support or oppose certain claims
3. Strike out some of the pleadings
4. Could also be contempt
a. Excpetion for orders of physical examination
5. IN lieu of any of the above the court can just order expenses paid to the other party
37(b1/2)
What happens if a party fails to disclose under Rule 26?
i. If a party fails to disclose something under 26(a) or fails to amend under 26(e) then they can not use that info at the trial
1.IN addition or in lieu, the court can make other appropriate sanctions-
What happens if a prty fails to show up to deposition?
i.Anyone who fails to answer, show up to a deposition, are subject to sanctions
1.Must show a good faith effort to get compliance-
2.Can award fees related to the failure
What is the point of RUle 45's subpoena power?
It allows you to get discovery from a non-party?
In order to compel participation under RUle 45 what must be shown?
1. Has to be personal in hand service
2. Has to be issued from the appropriate court.Has to be the subpoena from the district court where they are located in order for them to be valid. Attorney can sign off on the subpoena
3. Can;t make the person travel more than 100 miles unless the court issuing it is within the state they live in.
When can the claimant move for SJ?
)- Party can move for SJ, but must wait 20 days after filing the case
i. Unless the other party serves their own motion for summary judgment before 20 days has gone by
When can the defending party move for summary judgment?
Any time after the case is filed, it can be the first thing filed with the court
What must be present in order for the court to grant summary judgment?
1. There must be no genuine issue of material fact.
2. All facts construed in the light most favorable to the non-moving party show that the person is eligible as a matter of law.
What is required of the evidence that is used in connection with a motion for summary judgment?
It must be admissible at trial
What must an advers party do to oppose a motion for summary judgment.
an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
There are two wayws to do this, by coming forward with new affirmative evidence or by pointing to the record and establishing that the moving party has failed to meet its burden( reuqires deposing the other party's witnesses, analyzing their documents)
wHAT HAPPENS IF the motion for SJ comes very early in the trial and the adverse party has not had time to collect evidence?
Court can deny the motion, order a continuance, or order that more discovery be had if the advers party shows that the evidence is necessary to defend the claim.
What is the breakdown of the burdens if the defending party moves for SJ?
The D has the initial burden to show that the standard is met. Tow ways to do this, show affirmative evidence, or point to the record ( thorugh depositions, etc.) and show that the other side has not presented an issue of fact. Then the burden shifts back to the P to show that the D missed info in the record or to come up with new affirmative evidence, but they can not rely on the pleadings. The moving party always has the burden of persuasion.
If the P moves for SJ on a counter claim what must they produce?
Affirmative evidence that the D is not entitled to relief, or they can request for more time under 56(f)
What burden does the TC apply when deciding if the moving party has met its burden for SJ?
The burden that is required to win the case at trial. Anderson case
What are the two ways that an action can be dismissed?
1. Before a service of a responsive pleading the P can dismiss voluntarily, or after the parties can stipulate.
2. by order of the court
Are voluntary dismissals with prejudice?
Unless otherwise specified or the case has been dismissed before, NO (54(a)
Is an involuntary dismissal with prejudice?
Yes, unless otherwise specified it operates as a judgment on the merits. 54(b)
What happens if the P has previously dismissed an action and files essentially the same suit?
The court may order payment of the costs of the action that was previosly dismissed and may stay the proceedings until the P has complied with the order 54(d)
When would a court enter a default judgment?
. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default. Rule 55
What must a party do when they recieve a partial judgment as to some of the claims?
They must demand entry of th judgment in order to collect right away. Otherwise the judgment is subject to revision while the rest of the action is pending.
When can a party get costs>
The prevailing party is always allowed to recover costs as a matter of course.
When is a person assured the right to a jury trial?
- IN suits at common law, where the value in controversy shall exceed 20 dollars the right of trial by jury shall be preserved 7th amendment
What test is used to decide if a party is entitled to a jury trial?
The historicial test. The court will look at the complaint and decide if the claim/claims is/are essentially demands for equitable relief or legal claims.
What happens if a party does not demand a jury trial?
It constitutes a waiver, UNLESS the court decides that there was good cause under, 38(b).
Can a person get out of a demanded jury trial?
UNder 39(a) the party demanding the jury trial can stipulate in writing or orally in open court that they no longer want a jury trial, OR the court can determine that the person is not eligible for a jury trial
In general in what order will a court hear equtiable and legal claims?
Usually, the court in order to preserve the right to a jury, will try the legal claims first.
Why would a court decide to try equitable claims first?
If doing other wise would cause irreperable harm.
What is the standard for the granting of a judgment as a matter of law?
- Court should look to all of the evidence in the light AND WITH ALL REASONABLE INFERENCES most favorable to the non-mover. If the jury can find only one way then a JMOL is appropriate.
There must be a CONFLICT IN SUBSTANTIAL EVIDENCE IN THE CASE-
When can a JMOL be raised?
i. After opening remarks ( rare but it can happen)
ii. After P's case is completed- Either party may move here, but the P's is rarely granted
iii. After D's case- Both parties can move here
iv. At the close of evidence- either or both parties can move or renew the call
Does a party have to make a final motion for a JMOL at the close fo the evidence?
Traditionally yes, but the SC has just ruled that as long as they raised the motion once during the trial they may be alright
When must a renewed JMOL or a motion for a new trial be filed?
Within 10 days of the entry of a final judgment
FOr what reasons under rule 60(b) can a court set aside a judgment?
1. Mistake, inadvertence, surprise or excusable neglect
2. newly discovered evidence
3. fraud, MR or other misconduct
4.Judgment is void ( for lack of SMJ)
WHat are the two doctrines of preclusion and what do they refer to?
i. Res Judiacta- Claim preclusion
ii. Collateral Estoppel- Issue Preclusion
What are the elements of Res Judicata?
1. Valid final judgment
2. On the merits
3. same parties or their privies
4. Same claim
What constitutes the "same claim" for RJ?
All claims arising out the same transaction or occurrence that COULD have been raised at the first trial.
What is the rule about RJ and counter claims?
If the CC was compulsory, then it will be barred by RJ, if it is merely an AD it will not barred if it could have constituted its own COA, UNLESS the separate COA is a direct attack on the first judgment
What are the elements of Collateral Estoppel?
1. Valid final judgment
2. Same issue
3. Issue was fully litigated
4. Party had a full and fair opportunity to litigate the issue
5. Issue was essential to the resolution of the case
When is non-mutual collateral estoppel allowed?
It is always allowed for defensive, and the court has broad discretion to allow it for offensive CE.
What does a court have to consider in order to decide if they should allow non-mutual offensive CE?
1. If the P could have easily joined in the first suit, OR
2. application would be unfair to the D,
THEN the court will not allow NMOCE
What are the factors that a court will consider when deciding if application of NMOCE would be unfair to the D?
1. If the first suit was for a small amount of money
2. If there are previous inconsistent verdicts that could be used by the P to argue CE
3. If there are different procedures in the differing forums that might be OD in the case.