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154 Cards in this Set

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General Concepts of Subject Matter Jurisdiciton
Subject matter jurisdiciton involes the court's pwer over a particular type of case. PJ involves the court's ability of a court having subject matter jurisdiciton to exercise power over a particular defendant or item of property.
Can Parties Consent ot Improper SMJ?
No. A court lacking subject matter jurisdiciton over a particular case is not permitted to hear the case and this cannot be changed by the parties' consent. Not true of PJ or venue.
Direct Attack to SMJ
Virtually every jurisdiction follows the rule that defects in smj can be raised at any time while the case is still pending; they may even be raised for the first time on appeal. Moreover, parties can raise such defects on appeal even when they took the opposite position in the trial court.
Example: P sues D in federal court. D moves for dismissal for lack of SMJ. P successfully defends against the motion, but subsequently loses the trial. P may challenge the trial court's SMJ on appeal.
Collateral Attack on SMJ
After final judgment has been entered and all direct appeals have been exhausted, there generally can be no collateral attack on the judgment on the ground of lack of SMJ, absent exceptional citcumstances.
Subject Matter Jurisdiciotn of Federal Courts
The federal courts are courts of limited jurisdiciton. they are empowered to hear only those cases enumerated in the Constitution and for which there is a federal statute granding jurisdiciton, cases arising under federal law, cases between citizens of different states.
Supreme Court Jurisdiciton
The SC has original jurisdiciton over cases involving mbassadors, other public ministers or consuls, and those in which a state is a party. The remainder of the SC's jurisdiciton is appellate and regulated by conduct.
Who must plead jurisdiciton for a federal court?
Since federal courts have limited jurisdiciton, in federal court the plaintiff must pleasd the exact basis upon which federal jurisdition is asserted, and if this is challenged, the plaintiff bears the burden of proof.
Who must plead jurisdiction in state court?
State courts have general jurisdiction, so jurisdiciton is presumed to exist in all cases. Thus, the D must plead and prove that a case falls outside court's power.
Four Categories of Federal District Cout Subject Matter Jurisdiciton
1. Diversity of Citizenship
2. Federal Question
3. Special Statute Conferring jurisdiciton
4. Supplemental jurisdiciton
Federal Diversity Jurisdiciton
Diversity of citizenship is permited by the Constitution and statute pursuant thereto, in order to protect citizens of one state from unfair discrimination by the court of another state.
It exists when the plaintiff and defendant are citizens of different states.
It also exists when one party is a citizen of a state and the opposing party is an alien who is not admitted for permanent residency.
Citizenship of Individuals
A person is a citizen of th eplace where she is domiciled. A person's domicile is that place where she has chosen to be her home by being physically present in that place with the intentnion of making that place her home indefinitely.
Citizenship of Corporations
A corporation is a citizen both of the state in which it is incorporated and of the state in which it has its principal place of business. A corporation has only one principal place of business, and its location is a question of fact. When corporate activities are spread over several states, the place where high level management is located is genrally considred the most significant factor in deciding where the principal place of business is located.
Complete Diversity is Required
Complete diversity means that no plaintiff can be a citizen of the same state as any defendant.
Coroporations- they may be a citizen of two states and this citizenship may defeat diversity of citizenship.
When must diversity exist?
Diversity must exist at the commencement of the action not at the time of the accrual of the cause of action.
Devices to Create or Defeat Diversity
There are seveal situations in which parties may be selected in order to achieve the necessary diversity. However, 28 USC 1359 deprives teh federal court of jurisdiciton where a party by assignemtn or otherwise has been improperly or collusively made or joined to invoke jurisdiciton.
Diversity of Citizenship and Class Actions
Only the citizenship of the named representatives of the class is considered in determining diversity.
Voluntary Change of State Citizenship
A P can create diversity by changing his domicile after the cause of action accrued but before suit is commenced, but the change must be genuine.
Amount in Controversy Requirement
With teh exception of diversity actions under the Federal Interpleader Act, all diversity suits in federal court must involve more than $75,000.
Whose claim controls in the amount at controversy?
Unless it appears to a legal cetainty that less than the required amount i sinvolved in the case, the plaintiff's allegation that the required maount is in controversy will support jurisdiciton. If $75,000 or less is recovered at trial, subject matter jurisdiciton is not affected, but the plaintiff may have to pay court costs.
1. A single palintiff may aggregate all claims he has against a single defendant.
2. However, two or more plaintiffs or members of a class in a class action may not aggregate thier individual claims against a defendant.
3. A single plaintiff may not aggregate claims againt multiple defendants, unless the defendants are jointly and severally liable.
4. A defendant's counterclaim cannot be combined withthe plaintiff's claim in order to reach the jurisdicitonal amount.
Exceptions to Diversity
For historical reasons, even though diversity may be present, federal courts will not exercise jurisdiciton over domestic relations or probate proceedings.
Federal Question Jurisdiciton
It exists for cases arising under federal law. An action clearly arises under federal law when a federal statute provides teh cause of action and a remedy.
When may a suit under state law give rise to federal quesiton jurisdiciton?
A suit under state law may give rise to federal quesiton jurisdiciton if it substantially and directly involves a federal interest.
Ex. In a case in which P filed a state law negligence claim for injuries cause by a drug, relying in part on violations of federal food and drug laws, SC found no FQJ.
Pendent and Ancillary Jurisdiciton--Supplemental Jurisdiciton
Claims not ordinarily within the jurisdiciton of a federal court may still be heard by the federal court if they are closely connected to other claims that are within the jurisdiciton of the court. This has been codified under 1367.
Pendent Jurisdiciton
When the court has federal quesiton jurisdiciton, the court can determine state law claims by the plaintiff (not claims by defendant) based on the same transaction or occurence.
Test for Pendent Jurisdiciton
1. Both claims derive from a common nucleus of operative facts and,
2. the plaintiff would ordinarily be expected to try them in a single proceeding.
If so, the federal court has discretion to take pendent jurisdiction.
Ancillary Jurisdiciton
Ancillary jurisdiciton applies to both federal quesiton and diversity cases and is automatic, rather than discretionary.
Test for Ancillary Jurisdiciton
1. Whether there is a logical relationship between the jurisdictional claim and the ancillary claim and
2. whetehr the ancillary claim is defensively asserted.

Ancillary claims include counterclaims, third party defendant claims, intervention of right, and corss claims. It can be used to add parties.
Limitations on Supplemental Jurisdiciton
In cases based solely on diversity, supplemental jurisdiciton is not allowed over the following types of claims when it would be inconsistent with the requirements of diversity jurisdiciton:
1. Claims by plaintiff against persons added through joindeer, intervention, or third party practice
2. claims by persons proposed to be joined as plaintiffs becase they are needed for just adjudication and
3. Claims by persons seeking to intervene as plaintiffs.
In federal question cases, when may a court decline supplemental jurisdiciton?
If the claim sought to be heard raises a novel or complex issue of state law, if the state law claim predominations, or if the federal law claim is dismissed.
Removal Jurisdiciton
Congress has provided a defendant with the right to remove many cases from state to federal court if the federal court has subject matter jurisdiction.
1. Can only remove an action that could have originally been brought in federal courts. *Can't remove based on defense.
2. Only defendants may remove
3. All defendants must seek removal
4. If the basis for removal is diversity and one of the defendants is a citizen of the state in which the state action was brought, the action is not removable.
5. D may remove separate and independent claim based on a federal question.
Procedure for Removal
1. Notice of Removal- sent to federal court, defendants, and state court
2. A defendant is allowed 30 days from the time she receives a copy of the initial pleading
Personal Jurisdiction
The ability of a court having subject matter jurisdiction to exercise power over a particular defendant or item of property.
Limitations on Personal Jurisdiction
Limitations on a court's personal jurisdiciton arise from two sources:
1. Statutory Limitations- The first place to look to determine whether the court has properly exercise personal jurisdiciton is state law. If no statute grants the court the power to hear cases invlving the parties before teh court, then the court lacks personal jurisdicition.
2. The Due Process clause places two restrictions on the exercise of PJ. First, parties directly affected by the court action must receive fair and adequate notice of the action. Seond, there must be minimum contacts between teh defendant or property and the forum state so that assumption of jurisdiciton is reasonable.
Personal Jurisdiction in Federal Courts
Each federal court must analyze personal jurisdicitoin as if it were a court of the state in which it is located.
Three types of Personal Jurisdiciton
1. In Personam Jurisdiciton
2. In Rem Jurisdiction
3. Quasi in rem jurisdicition.
In Personam Jurisdiction
It exists when the forum has power oer the person of a particular defendant. The court may render a money judgment against the defendant or may order teh defendant to perfrom acts or refrain from acting. These decisions are afforded the Full faith and Credit in other states.
In Rem Jurisdiction
Exists when the court has power to adjudicate the rights of all pesrons in the world with respect t o a particular item of property. This jurisdiciton is limited to situations where the property is located within the physical borders of the state and where it is necessary for the state to be able to bind all persons regarding the property's ownership and use.
Quasi in Rem Jurisdiction
Exists when the court has power to determine the rights of particular individuals with respect to specific property within the court's control. It does not permit the court to determine the rights of all persons in the world with repect to the property.
Types of Long Arm Statutes
1. Unlimited Long Arm Statutes- Give their courts power over any person or property over which the state can constitutionally exercise jurisdictions.
2. Limited Long Arm Statutes- Specify in detail the situations in which their courts can exercise jurisdiction
Nexus Due Process Standard
Whether an exericise of in personam jurisdiction is sufficiently connected to a forum to be constitutional depnds on whether sufficient minimum contacts exist betwen the defendant and the form so that maintenance of the suit agains thte defendant does not offend traditional notions of fair play and substantial justice.
minimum contacts and reasonableness
Minimum Contacts
It involves a balancing test:
1. the quantity and nature of the defendant's contacts with the forum
2. their connection with the cause of the action and
3. the interest of the forum in protecting citizens.
The following have been held to be sufficient contact with the forum to exercise general in personam jurisdiction
1. Physical Presence at Time of Personal Service
2. Domicile
3. Citizenship- enough to exercise general personal jurisdiciton in federal courts
4. Systematice and Continuous Activity in Forum State
Limited in Personam Jurisdiction
If the defendant's in state contacts are less than systematic or continuous, specific in personam jurisdiction can generally be siad to be prper where the contact indicate that the defendant has voluntarily direct his activities toward the forum state or purposely aviled himself of the benefits and protection of the forum state and its laws.
1. Torts- injury itself is sufficient contact to exercise limited jurisdiction
2. Contracts- simply contracting with forum state resident is probably not sufficient basis on which to exercise limited. Long term contract.
The exercise of juridiction must also be reasonable, taking into account the litigants' interest and state's interests.
A reasonable method be used to notify the defendant of a pending lawsuit so that hse may have an opportunity to appear and be heard.
In Rem Jurisdiction Constitutional Limitations
The state has a great interest in adjudicating the rights of all the world regarding this property. Interests of persons who are known must be notified and it should be published in the paper.
Quasi in Rem Jurisdiction
permits a court without in personam jurisdiction to determine certain disputes between a plaintiff and defendant regarding property when the property is located in the forum state.
Voluntary Consent to Personal Jurisdiction
1. Voluntary appearance- A defendant may consent to jurisdiction by a voluntary appearance.
2. By Contract- As long as reasonable a person may give advance consent to jurisdiction in the event a suit is brough against him. Appointment of Agent, Forum Selection Clause
3. Implied Consent- When the state has substantiona reason to regulate activity of non resident of the state, it may provide that by engaging in such activity, thereby appointing a designated official for service.
Involuntary Consent to Personal jurisdiction
When the defendant fails to cooperate in discovery about its contacts with the forum state, a pcout may hold that the failur to cooperate constitutes a waive of any objection to PJ.
Time for Service
120 days but renewable by court order for another 120 days
How is service made?
1. At defendants place of aboud withone of suitable age and discretion residing therein or service upon valid agent.
2. Service under state rules
3. Wavier of Service (service by mail)
Service by Mail
P may mail D a copy of the complaint with a request to waive formal service of summons. the waiver is effecte by D's return of a waiver form included in teh amiling. D has 30 days from sent date to return. Failure of D to wiave formal service requires the P to effect srvice by some other propert mehtod and D will be liable for the cost of this service. A D who waives formal srcie obtain an advantage in additoin to avoiding the costs of alternative service--she may answer no later than 60 days after the date on which request for waiver was mailed, asa compated to 20 days for formal service of the summons and complaint.
Direct Attack
A direct attack occurs when a party challenges jurisdiciton by motion or pleading filed in teh very case about which jurisdiction is questioned.
Disadvantage about Direct Attack
Once a person enters the case and makes a direct attack, she must pursue her attack in teh courts of the state in which the action is being tried. If she loses at teh trial level, she cannot drop the challenge, pull out of the case, and attempt to challenge jurisdiciton later in another proceeding. She will be bound by the initial decision on the jurisdiction quesiton.
Collateral Attack
A collateral attack is a challenge to juridiction in one case that is raised by a party in a different proceeding. It occurs when a person does not enter teh case but allows a default judgment to be entered agianst him or his property and thin in a different proceeding, claism that jurisdiciton was improper.
Disadvantage of Collateral Attack
The challenger gives up the right to fight the case on the merits. if he loses his argument on jurisdiciton, the default judgment stands.
General Venue Rules
Venue in a civil action is proper in:
1. A judicial district where an defendant resides, if all defendants reside in teh same state
2. A judicial distict in which a substntial part of the events or omissions giving rise to the claim occurred, or a substantila part of the property that is subject of the action is situated or
3. If no district satisifies 1 or 2:
For actions based solely on diversity , a district where any defendant is subject to personal jurisdicition at the time the action is commenced or for actions not based solely on diveristy, a district in which any defendant may be found.
Residence of Individuals
Most jurisdictions say it is equivalent to his place of citizenship or domicile.
Venue in local actions
A local action (in rem action relating to property) must be brougth in the district where teh property that is the subject matter of teh action is located. If more than one district, then more than one district.
Waiver of Venue
Teh failure to raise a venue objection in the first responsive pleading constitutes a waiver of that objection.
Transfer when venue is proper
1404 Allows transfer to another district where the action might have been brought even though venue has bee properly laid in the court before which the transfer is made. While venue may be correct, it may inconvenience the parties or the witnesses of the trial. A forum selection clause is a factor in deciding the convenience of the forum.
Transfer when Original Venue is Improper
1406(a) is designed for situations where the venue is improper and the alternative to tranfer is dismissal of the action. The standard for transfer is the interest of justice. Transfer is more appropriate than dismissal except in extraordinary circumstances. The transferee forum must have SMJ and in personam jurisdiction over the defendant and venue must be proper.
Forum Non Conveniens
A court with proper jurisdiction and venue over a case may conditionally dismiss the action and rquire plaintiff to reinstitute it in another court where trial would be substantially more appropriate. If the case cannot be properly tried in the second court, then action can be revived in the original court. Burden on D to show that other state is more appropriate.
Federal Court in Diversity Case
A federal court, in the exercise of diversity urisdiction is required to apply teh substantive law of the state in which it sits, including that state's conflict of laws rules.
Policy Behind Erie
Teh Erie doctrine prevents forum shopping. Without Erie, plaitiffs or defendants may attempt to get into federal court to avoid a state rule or to take advantage of a federal rule.
Outcome Determinative Test in Gray Areas
When it is unclear whether a state law rule is substantive or procedural, courts use outcome determinative test: A state law rule that substantially determins the outcome of the litigation must be applied.
Must state the essential elements of a claim or defense. A pleading lacking the essential elements will be dismissed if challenged by a genereal demurrer or the equivalent motion to dismiss for failure to state a claim or defense. However, pleader is almost always given a chance to cure.
Types of Pleadings Permitted
1. Complaint
2. Answer to Complaint
3. Answer to Counterclaim, Cross Claim or Third Party Claim
4. Reply
When Are Responsive Pleading Required
A party must file and serve a responsive pleading to
1. complaint
2. counterclaim
3. cross claim
4. 3rd party complaint
5. 3rd party answer
Time Period for filing and Service
1. Complaint- 120 days from filing must be served
2. Answer- Teh defendant has 20 days after formal service of summons and complaint to serve answer. 60 days if waiver 90 if outside US.
3. Other Pleadings- 20 days
Representations made in a pleading
Under Federal Rule 11, an attorney makes the following representations upon presentig a pleading:
1. the paper is not presented for any improper purpose
2. factuar contentions have evidentiary support
3. denials of facts are warranted by evidence
Complaint Requirments
1. Caption
2. Statement of Claim
3. Prayer
4. Signature
5. Grounds for Subject matter jurisdiction
Notice Pleading
Federal rules call for notice pleading "a short and plain statement of the claim showing that the pleader is entitled to relief" As long as the basic nature of the claim is sufficiently stated to notify the court and the defendant fo the matter involved, it is of not consequence that the pleader uses conclusions or evidence instead of facts.
Pleading Special Matters
Certain matters must be state with particularity:
1. an assertion that a party lacks capacity to sue or be sued
2. averments of fraud or mistak
3. denial of perfromance or occurence of conditions precedent and
4. special damages
General Damages
those that so necessarily flow from the defendant's wrongful act that the law will imply them in the absence of evidence to the contrary
1. Tort casees- pain and suffering and disability are general damages
2. Contract cases- loss of benefit of contract
Special Damages must be Pleaded
Those that are actually incurred but ar not necessary consequence of the wrongful act.
1. Tort cases- medical expenses and lost wages or profits
2. Contracts- additional losses due to failur to perform
Prayer for Relief
1. Litigated Cases- the court can award to the P any relief consistent with the cause of action pleaded and proved, whther or not requested in the complinat.
2. Default Cases- the prayer for relief limits the amount of recovery. The purpose is to encourage default when the defendant has no valid defense.
1. State an explicit admission or denial or
2. State that the pleader lacks knowledge or information suffficient to form a belief as to the truth of the allegation, which has the effect of a denial.
What happens if the pleader faile to deny a part of a complaint?
Allegation in a pleading that require responsive pleading, are admitted if not denied in the responsive pleading.
What defenses must be state in the responsive pleading?
A defense asserted in teh responsive pleading or by motion is waived, except for the defense of lack of SMJ and failure to state a claim. Affirmative defenses must be state in teh responsive pleading.
Challenging Pleadings
All defenses must be raised in the answer except the pleader has the potion of raising certain defense in a pre-answer motion. Certain of these defenses are disfavored and waived if not brough in a pre-answer motion. Others are waived if they are not raised in teh first responsive pleading.
The following objections are waived unless raised in a pre-answer motion
1. More Definite Statement
2. Striking Procedurally Improper Allegations- knocks out late filings
The following are defenses that are waived unless raised in the first responsive pleading
1. Lack fo Personal Jurisdiciton
2. Insufficient service of process
3. Improper Venue
The following deenses may be raised at any time from pre answer motion through trial
1. failure to join an indispensable party
2. failure to state a valid claim or defense
3. lack of subject matter jurisdiction
What happens if the motion for dismissal, transfer, or summary disposition is granted?
The plaintiff may or may not be affored the right ot amend, as the trial court determines. However, any refusal by the trial court to permit amendment will be reversed on appeal if the defect could have been cured without prejudice to the adverse party.
When are Amendments Permitted?
1. One Amendment as of Right- as long as done before the responsive pleading is returned or within 20 days
2. Amendments by leave of corut or consent of adverse party
Amendments Conform to Evidence
The frderal rules permit an amendment to conform to the evidence if the new issues were in fact tried by the express or implied consent of the parties. It makes not difference that the new issues technically constitute a new cause of action or defense.
Effect of Amendments
1. Original Pleadings Superceded
2. New Answeer to Amended Complaint
3. Relation Back--Tolling of Statute of Limitations
Special Problems of Amendments Adding Parties
Generally a pleading cannot be amended to add a new defendant if the statute of limitations has run prior to adding the new defendant. It is allowed to make SOL relate back if the party has received such notice of the institution of the action that he will not be prejudiced in maintining his defense on the merits and knew or should have known that but for a mistake of the identity of the propr party, the action would have been brought against him.
Duty of Disclosure
Federal Rule 26 requires three types of disclosures:
1. Initial disclosures
2. Disclosure of Expert Witnesses
3. Pretrial disclosures
Initial Disclosures
Without waiting for a discovery requires, a party must provide other parties:
1. Names addresses, and phone numbers of individuals likely to have discovrable information relevant to disputed facts
2. Copies or descriptions of documents or thins in the disclosing party's possession or control that are relevant to disputed facts
3. A computation of damages claimed by the disclosing party and copies of materials on which the computation is based and
4. Copies of insurance agreements under which an insurer might be liable for all or party of any judgment that might be entered
When must initial disclosures be made?
These disclosures must be made within 14 days after the meeting of the parties required by 26(f), unless stipulated to a different time period.
Disclosure of Expert Testimony
A party must disclose to other parties the identities of expert witnessess expected to be used at trial. This disclosure must be accompanied by a report prepared and signed by each expert witness stateing qulaifications. Must be done 90 days before trial, if rebuttal, it must be made in 30 days.
Pretrial Disclosures
At least 30 days before trial, a party must disclose the witensses he expects to call at trial, the witnesses he will call if the need arises, the witnesses who testimony will be presented by means of dposition. Must serve objections to these within 14 days of receipt.
Production of Documents
any party, whether or not adverse, may be required to produce and permit inspection by any other party of any relevant papers, photogaphs, object, etc. in his possession. Can require land to be entered, too. 34(a)
Interrogatories to Parties
Interrogatories are a set of written quesitons sent by one party to another party that must be answered by the latter under oath. The requesting party initially may not serve more than 25 interrogatories.
Answeres to Interrogatories
The party on whom interrogatories are served must serve the answers and objections, if any, on all other parties within 30 days after the interrogatories are served. 33(b). Moreover, the answering party has a duty to investigate.
Information Contained in Business Records
When information can be obtained only by a compilation, audit, or summary of the business records of the answering party, the asnwering party, in lieu of an answer, may specify in detail the records where the information can be obtained and give the interrogating party the opportunty to examine such records to get the information.
A party seeking to tak a deposition merely send a notice, timly under the local rules to each of the othr parties in teh case, giving the time and place of deposition, and the methiod which the testimony will be recorded. 30(b). Party cannot obtain more than 10 depos without leave of court.
Subpeonas and Depositions
1. Subpeona not needed for parties
2. Nonparties should be subpeonaed- if the witness to be deposed is not a party to the action, he should be supeonaed. It may be served by any person who is not a party and is not less than 18 years old.
Subpoena Duces Tecum
A deponent can be ordered to bring to the deposition relevenat items in his possession. Parties, officers of parties who thenseles need not be subpoenaed to a deposition may be ordered to bring such items by the notice.
Written Depositions
The parties submit in adance written questions that the officer puts to the deponent orally. The deponent answers orally just an in an oral deposition and the quesions and answers are recorded. Within 14 days, other parties must serve their cross questions, and finally a set of reross quesitons may be served within 7 days.
Physical, Mental, and Blood Examinations
When these are in controversy, the court may order an appropriate examination by a suitable licensed or certifed examiner. Such an order is made only on a showing of good cause. 35(a)
Exchange of Medical Information
1. Examined Party has Right to Receive Copy of REsults Plus Other Reports- an examine party has the right to a copy of the examining doctor's report.
2. Examining Party has Right to REports in Exchange- by asking for a copy of the examination, the party examined must respond to a request by the opposing side for reports of his own doctors regarding the ondition in issue. Waving all evidentiary privileges.
Requests for Admissions
RA of specified matters may be sent by one party to any other party. Matters are automatically deemed admitted unless a responding party send a sworn denial, specifies reasons why he cannot admit or deny, or makes a written objection to the requests stating the grounds. Denials must be specific and must include admission of all aspects that are true.
Duty of Answering Party for Requests for admissions
must make a reasonable investigation before refusing to admit or deny lack of personal knowledge. the answering party cannot refuse to admit or deny solely because the requrested admission invlves a crucial disputed issue in the pleadings.
Weight Given to Admissions
An admission is binding unless the court for good cause orders it withdrawn or amended.
Only Relevant Matters are Discoverable
1. Impeachment Evidence is Relevant
2. Party's Financial Status Generally Not Discoverable
3. Insurance Discoverable
Protective Orders
On motion of a party or witness, a protective order limiting discovery will be granted only when necessary to protect a party or witness from annoyance, embarassment, oppression, or undue burden or expnse.
If evidence is privilege, discovery is barred regardless of whther the evidence is relevant. Privileged matter is that which is privilege from disclosure at trial under the rules of evidence.
Work Product
Work product includes documents and tangible things prepated in anticipation of litigation by or for a party's attorney or other representative. Attorney notes, attorney's staff notes, answeres by clients.
Limitations On Work Product
WP does not include evidence merely because it is discovered by or turned over to an attorney.
1. Must have been produced in Preparation of Trial
2. Party's Knowledge not part of work product
When is Work Product Discoverable?
The party seeking discovery must show substantial need of the materials in the preparation of the case and that he is unable without undue hardship, to obtain the substntial equivalent of the materials by other means. Exceptions are confiened to witnesses' statements made to an attorney or his staff. Expert witness hired by attorney to investigate.
Enumerated exceptions to WP
1. Written Statement of unavailable witness
2. Own Statements by a witness
3. Expert Witnessess- Testifying- testimony may be discovered- non testifying- must show need
Protective Orders
obtained under rule 26(c) to limit the discovery of trade secrets or to terminate the examination if discovery is abused
Signature Requirements
Every requres and response or object must be signed by the party or his attorney. It certifies that he has red teh requres, reponse, or objection and that to the best of his kowledge, information and belief it is:
1. consistent with the federal rules and warranted by existing law
2. not made for an improper purpose
3. not unreasonable or unduly burdensome or expensive
Rule 26(f)
At least 21 days before teh scheduling conference is held or the schduling order required by 16(b) is due, the parties must meet to discuss their claims and defenses, the possibility of settlement, initial discolosures, adn discovery plan. Plan must be in writing 14 days after meeting, must address teh timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, adn relevant orders that may be required.
Rule 16(b)
The court must hold a scheduling conference. The court must enter a scheduling order within 90 days after the appearance of a defendant, and within 120 days after the compalint has been served on a defendant. The order limits the time for joinder, motions, and idscovery.
Sanctions for Failure to Comply with Rules
1. Court order Compelling Discovery
2. Expenses of making motion
Refusal to comply with Court Order or Subpoena
These sanctions include but are not limited to:
1. an order taht matters to which the order pertained bay be taken as established
2. an order refusing to allow the disobedient party to support or opposed disignated claims or defenses
3. order striking pleadings, dismissing action or proceeding in part or rendering default judgment
4. an order treting as contempt of court
When may depositions be used?
1. May be used by an y party for impeachment purposes
2. may be used by an adverse party for any purpose
3. may be used by any party and for any purpose if the court finds the witness is dead, witness is 100 miles or more away, witness is sick, can't procure witness, exceptional circumstantces
When may interrogatories be used?
Answer to interrogatories can be placed into evidence by adverse party
Summary Judgment
Rule 56- it must be granted if from the pleadings, affidavits, and discovery materials, it appears taht there is not genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may not decide disputed fact issues on a motion for summary judgment; if there is a disputed fact, the case must go to trial.
When may summary judgment be moved for?
The claimant may move for summary judgment at any time after 20 days from commencement of the action or after service of a motion for summary judgment by adverse party. The defending party may move at any time. The motion must be served at least 10 days before the time fixed for the hearing, but the advers party may serve opposing affidavits on the day prior to the day of the hearing.
Relationship to motino to Dismiss and Motion for Judgment on the pleadings
A motion for judgment on the pleadings is to the legal sufficiency of the complaint. However, accompanying the pleadings with other things would be a motion for summary judgment.
If a party against whom a judgment for releif is sough has failed to pleador otherwise defend, and that fact is made to appear by affidavit or thereise,, the clerk must enter the dafault of that party. Notice of the netry must be sent to all parties who have appeared and to the defaulted party. Once the default of a party has been entered, that party may not proceedwith the action until the default has been set aside by the court.
Default Judgment
On against whom a judgment of defalut is entered loses the right ot contest liability, but the amoutn of damages may be contested.
Default Judgment entered by the Clerk
On requrest of plaintiff, supported by an affidavit as to the amoutn due, the clekr may sing and enter judgment for that amoutn and costs against the defendant if:
1. Teh P's claim against a D is for a sum certain
2. Teh defalut was entered becasue the D failed to appear and
3. The defaulted D is not an infant or incompetent
Default Judgment entered by court
The party entitled to a judment by default must apply to the court for the judgment. A judgment by default may not be entered against a minor or an incompetent person uhless the perosn is represeneted in teh action by a conservator, guardian ad litem, or other representative. Notice must be given after entry of judgment.
Involuntary dismissals
A court may order an involuntary dismissal against a P for failure to (i) prosecute
(2) comply with the Rules or
(3) comply with court order
Voluntary dismissal
1. Without leave of court- if D has not answered or filed a motion for SJ, P can dismiss
2. With leave of Court- The court has discretion to grant dismissla upon such terms and conditions as the court deems proper. The dismissal is without prejudice unless the cour specifies.
Offer of Judgment
A party has the option of offering ajudgment in a particular amount more than 10 days before trila. If the other party accdepts within 10 days, the case is settled.
Right to a Jury Trial
7th Amendment provides right to a jury trial where the amount in controversy exceeds $20.
The US SC has demonstrated a clear preference for jury trial in doubtful cases by holding that:
1. When legal and equitable claism are joined in one action involving common fact issues, the legal claim should be tried first ot the jury and then the equitable claim to the court.
2. When procedure formerly available only in equity, jury should try the fact issues
3. When damages are claimed as party of an action seeking injunction, the D cannot be denied a jury on the damages issues.
4. When a new claim is created that did not exist at CL, a right to a jury trial will exist if the claim is similar to a claim for CL rights and remedies.
Demand for a jury trial
A party who desires a jury trial mut file a written demand with the court and serve it on the parties. Failure to make such a demaond, not more than 10 days after filing after filing of pleading in which the jury triable issue arose, constitutes a waiver by the party of any right to a jury trial.
Persons not Qualified to Serve on a jury
noncitizens of US, minors, have not resided i nfederal district for one year, cannot sufficiently speak english, are mentally or physically infrim or have been convicted of a felony.
Voir Dire
A juror may be questioned concerning his possible bias. Once a pool of juroris is selected and tentative jurors are chosen at random for a particular case, the court conducts an investigtaion to see if each juruo will be fiar and impartial and if not that juror is replaced from the pool.
Preemptory Challenge
Each side is entitled to three peremptory challenges. When multiple parties having adverse interests are aligned on the same side, three peremptory challenges are allowed to each party represented by a different attorney, and the court may allow the opposite side a total number of peremptory challenges not exceeding the total number allowed to the multiple parties.
Different Types of Verdicts
1. General Verdict
2. Special Verdict
3. General Verdict with Interrogatories
General Verdict
The jury finds for the plaintiff or defendant and gives teh amount of damages or relief due. A general verdict implies that all essential issues were found in favor of the prevailing party.
Special Verdict
Jury is asked to make a finding on all material conclusion of fact, and the court apples the law. The procedure for a speical verdict is to submit to the jury a series of questions regarding each ultimate fact.
General Verdict with Interrogatories
The jury is asked to give a general verdict and also to answer specific questions concerning certain ultimate facts in the case.
Directed Verdict
is used against any party who had an opportunity to present his side of the case when the vidence in the case reveals that the moving party must prevail. It may be requested at end of P's case or at end of evidence. The motion must state specific grounds in suppor of the motion.
Test for Directed Verdict
The general rules is that a verdict should be directed only if thre is no substantial evidence to support a verdict for the nonmoving party. the motion should be granted only if there is a complete lack of probative evidence to support a verdict for the nonmoving party or if the facts point so strongly to the moving party that reasonalbe persons could not reach different conclusion.
is used to overturn a jury verdict for one party when a directed verdict for th e moving party would have been appropriate.
What is the prerequisite for a JNOV?
requires that a motion for a directed verdict have been made previously. If none was made, the trial judge can only grant a new trial.
JNOV vs. Directed Verdict
JNOV avoids taking a case from teh jury when the jury makes a proper decision and if the JNOV is erroneously granted, a new trial is not required--the jury verdict can merely be reinstated.
Time Requirement for JNOV
A motin has to be made withing 10 days after entry of judgment. The motion may be joined with a motion for a new trial, or a new trial may be requested in the alternative.
Standard for JNOV
the evidence is to be viewed most favorable to the adverse party and the motion should be granted only if the movant is entitled to a determination in his favor as a matter of law. If there are controverted issues for jury determination, no verdict can properly be direct and hence a motion for JNOV cannot be allowed.
Motion for New Trial
There are two types: those that allege a particular legal erro and those that allege no specific error but assert thta the verdict is against the weight of the evidence.
Time requirement for motion for new trial
must be filed within 10 days after entry of the judgment. Court may do on its own initiative.
grounds for a new trial
1. misconduct of the jury or of prevailing party
2. escessive damages appearing to have been influened by passion or prejudice
3. accident or surprise which could not have been avoided
4. error in the assessment of the recovery
5. verdict against the preponderance of evidence
6. new material evidence discovered that could not have been found with reasonable diligence
Judicial Rmedies in non jury trial
1. set aside the judgment fi one has been entered
2. take additional testimony
3. amend findings of fact and conclusions of law or
4. make new finding and conclusions and direct the entry of new judgment