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48 Cards in this Set

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  • Back
What must a representative(s) demonstrate for all class actions?
1. NUMEROSITY: too many class members for practical joinder (argue both ways)
2. COMMONALITY: there are some questions of law or fact in common to the class
3. TYPICALITY: representative's claims/defenses typical of those of the class
4. ADEQUATE REPRESENTATION: class representative will fairly and adequately represent class
What are the three types of cases that a class action must fit into?
1. Prejudice (unlikley)
2. Injunction or declaratory judgment sought b/c class treated alike by other party (i.e. employment discrimination)
3. Damages
For "damages" type of class action, what must representative show?

1. common questions PREDOMINATE over individual questions; and
2. class action is the SUPERIOR METHOD to handle the dispute

example: mass tort
the court must determine ____ whether to ______ the case to proceed as a class action.

If the court does _____ (same as last), then it must do what?
at an early practicable time



If certified, the court must "define the class and the class claims, issues, or defenses."
For "damages" class action suits, how do class members become aware of the suit?

What must the notice state?
The COURT must notify class members, including individual notice to all REASONABLY IDENTIFIABLE MEMBERS.

Notice states: (a) they can opt out; (b) they'll be bound if they don't; (c) they can enter a seperate appearance by counsel.
Who pays for the notice to the class members?
the represenative
What is unique about a "damages" class action compared to the other two types?
1. Only "damages" class members have a right to opt out.

2. notice to reasonably identifiable class members required.

3. court must give members a second chance to opt out after giving notice to get feedback on whether to settle or dismiss the case
For diversity of citizenship class action claims, how do you determine (1) the class' citizenship and (2) amount in controversy?
Look only to the represenative(s)
What to know about depositions?
1. It's sworn oral statements by deponent responding to questions by counsel, recorded by sound or video/sound or stenogrpaphically. Transcripts then made

What to know about interrogatories?
They are questions propounded in writing TO ANOTHER PARTY, to be answered in writing under oath.

25 question maximum, including subparts
What to know about requests to produce?
they are a request to another party (or to a non-party if accompanied by a subpoena)
What to know about physical or mental examinations?
Only avialable through court order on showing that helath is in actual controversy and "good cause"
Does certification rule 11 apply to discovery documents? What does?

Signed by counsel, certifying
1. it is warranted
2. not interposed for improper purpose and
3. not unduly burdensome
What is the scope of discovery?
anything "relevant to a claim or defense"

So, must be relevant to something in the pleadings
What does relevant mean for the purposes of discovery in civ pro?

What is the scope's relation to "admissible"?
"reasonably calculated to lead to the discovery of admissible evidence."

This is broader than admissible.
is privileged matter discoverable?
What is work product?
= material prepared in anticipation of litigation.
What is the exception to work product rule?

When does the exception not apply?
Requesting party must show:
1. substantial need AND
2. it is otherwise not available

To things that are ABSOLUTELY PROTECTED, which includes (a) mentla impressions (b) opinions (c) conclusions and (d) legal theories.
What is a partial violation verses a total violation of discovery? What is the result of each?
PARTIAL VIOLATION: receiving party answers some and objects to others; objections are not upheld
Result: order compelling... plus costs of bringing motion

TOTAL VIOLATION: receiving party fails completely to to attend dop, respond to interrogatories or to requests for production.
Result: Rambo plus costs (and attorney's fees re the motion)
What must a party do that seeks sanctions? (it's a quote)
"The party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement."
What are the rambo sanctions available where party fails to respond adequately to discovery?
1. establishment order (establishes facts as true)
2. strike pleadings of disobedient party
3. disallow evidence from disobediant party (as to issues re discovery)
4. dismiss P's case (where bad faith)
5. enter default judgment against D (where bad faith)
What sanctions can be imposed against non-party?
What is a voluntary dimissal? How many times can it happen?
= plaintiff files a written notice of dismissal.

P can dismiss once w/out prejudice b/f D serves an answer or moves for SJ

2nd voluntary dismissal will be with prejudice, even if taken in state court
How does failure to state a claim work?

What FRCP provision?

What is this called in state courts?
Testing the sufficiency of P's allegations in the complaint and assuming they are true, court asks if P proved all theat she has alleged, would she win judgment?

FRCP 12(b)(6)

If a demurrer is granted, is it with or without prejudice?
probably without prejudice
What is the name of the "failure to state a claim" motion where D has already answered?
"Motion for judgment on the pleadings"
What motion is appropriate where P's complaint sets forth elements of a claim and a complete defense?
12(b)(6) failure to state a claim
What is the standard for summary judgment?

Does court consider evidence?
Moving party must show that (1) there is no genuine dispute as to a material issue of fact and (2) that she is entitled to judgment as to a matter of law.

Yes, court considers evidence (distinguishes from failure to state a claim and judgment on the pleadings)
Is an affidavit a sworn statement? So what?
Yes, they are made under penalty of perjury.

they can be evidence! And they can be used in MSJ.
Are pleadings used in motion for summary judgment?
Might be relevant to show an admission, but pleadings are not evidence.
What are the requirements for affidavits?
1. must be made under the penalty of perjury

2. must be 1st hand knowledge
What does the pre-trial conference do?

The final pretrial conference?

What does it do?
held by the court as needed to expedite the case and foster settlement.

final: determines issues to be tried and evidence to be proffered. It's all recorded in the pretrial conference order which basically SUPERCEDES the pleadings; may be amended only to prevent manifest injustice.
What does the final pretrial conference order do?
it's a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc.

It's prevents surprises at trial
What is the 7th amendment?

When does it apply?
7A: right to jury trial

1. Only applies in federal court AND
2. preserves the right to jury in "civil actions at law" not suits in equity
How to get a jury?
Must demand in writing no later than 10 days after service of last pleading reaising jury triable issue.
Jury selection process limitations
1. unlimited strikes for cause (bias, prejudice, related to party)
2. 3 peremptory strikes (must be used in race and gender neutral way)
What is a motion for judgment as a matter of law?

What is the standard for granting the motion?

Anything else?
Old name: directed verdict

takes the case away from the jury.

Standard: "reasonable people could not disagree on the result"

"and the court generally views evidence in the light most favorable to the nonmoving party."
When is a motion for judgment as a matter of law brought?

So what?
after the othre side has been heard.

So, D can move twice: at close of P's evidence and at close of ALL evidence

P can only bring at close of all evidence.
Renewed motion for judgment as a matter of law. What is it?

What is the standard?
Old name: judgment notwithstanding the verdict

It throws out jury's decision and lets judge decide instead.

standard: "jury reached a conclusion reasonable people could not have reached." same as judgment as a matter of law
What is required in order to bring a motion for a renewed motion for judgement as a matter of law?

who normally screws this up?
Must bring "motion for judgment as a matter of law" AT CLOSE OF ALL EVIDENCE.

D usually screws this up.
What is the final judgment rule?
Party can only appeal from final judgments, which means an ultimate decision by the trial court of the merits of the entire case.
What is claim preclusion?
= res judicata

= a judgment already entered on an earlier case precludes litigation of any matters in another case.
What are the requirements for claim preclusion?
1. both cases wree brought by "the same claimant against the same defendant"
2. the first case "ended in a valid final judgment ON THE MERITS"
3. both cases "asserted the same claim"
How is a judgment on the merits for the purposes of claim preclusion?
assume the court entered judgment on the merits, unless stated otherwise OR

unless based upon J, venue or indispensible parties.
For the issue of claim preclusion, how to determine if first and second case asserted the same "claim"?


Majority: a claim is any right to relief arising from a TRANSACTION OR OCCURENCE

Minority: there are seperate claims for property damage and for personal injuries b/c those are different "primary rights"
What is issue preclusion?
Issue preclusion precludes relitigation of a particular ISSUE litigated and determined before
What are the requirements for issue preclusion?
1. case 1 ended in a valid, final judgment on the merits
2. the same issue was actually litigated and detmerined in Case 1 (may not arise with default judgment)
3. the issue was essential to the judgment in Case 1 (i.e. judgment would have been different w/out the issue)
4. must be asserted AGAINST a party that was in Case 1 (or represented by a party) per due process
5. must be asserted BY proper party
Issue preclusion can be asserted BY whom?


Traditional view (mutuality): only bo one who was party to Case 1. Not required by due process.

Minority view (nonmutual): being used by one who was not a party in Case 1. So party asserting it can be a P or D in case 2