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255 Cards in this Set
- Front
- Back
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Six major topics
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Six Right court, learning about case; complex cases; adjudication; appellate review; effective judgment
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In terms of "right court," federal courts need …
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In terms personal jurisdiction, subject matter jurisdiction, venue
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uv Federal courts can hear only ________ or ___________ types of cases.
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uv Federal questions...... diversity
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Diversity Requires:
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Diversity Action must be between citizens of different state (or citizen and alien) AND the amount in controversy must > $75K
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Complete diversity - there is no diversity if…
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Complete any P is citizen of the same state as any D.
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Domicile How to determine litigant's citizenship, if litigant is person?
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Domicile (physical presence in state, plus subjective intent to make it her permanent home)
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Every person has ________ domicile
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ONE
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tt Diversity is tested at time case is ______
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tt Filed
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If P moves states in order to sue under diversity in federal court, is there diversity?
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Yes, *if* P had the subjective intent to make the new state her permanent home
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jk How to determine litigant's citizenship, if litigant is corporation?
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jk State where incorporated AND the one state where the corporation has its principal place of business
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more A corporation can have _______ state of citizenship; but_______ PPB.
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more than one; only 1
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Jim Cramer, Inc. (inc. in PA, PPB NJ), sues Booyah Corp. (inc. in Del, PPB PA). Is there diversity?
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Jim No - both have PA citizenship
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Nerve To determine PPB, two tests:
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Nerve centers (where decisions are made, usually HQ); Muscle center (where corporation does most work). Usually, use nerve center, unless all corporate activity is in one state
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may How to determine litigant's citizenship, if litigant is unincorporated association (partnership, llc, etc.)?
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may state of citizenship of all the members, including GPs and LPs
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po How to determine litigant's citizenship, if litigant is decedent, minor, incompetent?
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po Based on their citizenships, not the citizenship of their representatives or agent.
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Is there diversity if P's claim is $75k?
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Is NO (must exceed $75,000)
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gh How to determine amount of controversy?
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gh Whatever the plaintiff pleads in good faith is OK, unless it is clear to a legal certainty that she cannot recover more than $75 (e.g., statutory ceiling)
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Irrele What P wins is __________ to jurisdiction, but if P wins less than $75K, she …
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Irrelevant… may have to pay the winner's litigation cost.
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P can aggregate claims to > the $75 limit, if __________.
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P can one P v. one D.
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For joint claims (P v. joint tortfeasors) establish diversity based on ____________ claim. Why?
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For jpoint the total value of the … because any one of them could be liable for the total amount.
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To establish the amount in controversy in equitable suits for injunctive relief…
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To esttwo tests; either can suffice: Does harm cost P > $75K (or decrease value of P's property, etc.), or, would it cost D > $75K to comply with injunction?
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Cases federal courts won't hear, even if diversity requirements are met:
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Cases Actions involving issuance of divorce, alimony or child custody decree, or to probate an estate
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well-pl For federal question jurisdiction, P must meet the ___________, meaning that __________.
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well-plea ded complaint rule … P's claim, properly pleaded, must arise under federal law - i.e., is P enforcing a federal right?
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kl Is citizenship/amount in controversy relevant in a federal question case?
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kl NO
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26 Once a case is in federal court, test whether ___________ meets federal question or diversity jurisdiction; if not, P needs ____________.
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26 every single claim … supplemental jurisdiction.
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29 What is the test for federal supplemental jurisdiction?
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29 A claim must share a "common nucleus of operative fact," with the claim that invoked federal subject matter jurisdiction - this is always met by claims that arise from the same transaction or occurrence as the underlying claim.
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sj What is the limit for supplemental jurisdiction?
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sj In a diversity case, P may not use supplemental jurisdiction to overcome a lack of diversity. (I.e., if it’s a FQ case, then the pl can use supp juris to get a case in that lacks diversity.)
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yo Can P use supplemental jx to overcome a lack of diversity for a claim in a federal question case?
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yo YES
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P(MO) sues D(MO) for (1) violation of federal antitrust laws and joins a transactionally related claim for (2) violation of state antitrust laws. OK?
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P(mo) Yes. Claim 2 can invoke supplemental JX - it meets the test and the limitation for diversity cases does not apply because this is a federal question case.
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P may use supplemental jx to overcome ____________ in a federal diversity case.
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P may A lack of amount in controversy - but not a lack of diversity
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hy _____________ can use supplemental JX to overcome either a lack of complete diversity or amount in controversy in any case (diversity or FQ).
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hy Any party but P
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A non-federal, non-diversity claim can be heard in federal court if _______________, unless it is __________, ______________, AND _______________.
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it meets the test for supplemental jurisdiction (common nucleus of operative fact - i.e., same transaction/occurrence)… asserted by a P, in a diversity case, AND would violate complete diversity.
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Courts have discretion not to hear the supplemental claim when…
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Courts1. if the FQ is dismissed early in the proceedings, or
2. if state law claim is complex, or 3. if state law issues would predominate. |
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Removal allows ____________ to have a case filed ________ or to ____________,
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Defendants (only) … in state court … to a federal court.
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569If removal is improper…
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569federal court can remand to state court.
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570D can remove a case if __________.
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570if it could be heard in federal court - that is, it would invoke diversity or federal question.
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5720Where can a case be removed?
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572To the federal district embracing the state court in which the case was originally filed.
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599When/ How can a case be removed?
(4) attaching all documents served on def in state action (5) and then copies all adverse parties. (6) Def then files notice in state ct. |
599No later than 30 days after SERVICE of the first removable document (usually service of process)
How? Steps: (1) Def files notice of removal in fed ct (2) stating grounds for removal (3) signed under Rule 11 |
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69Must all defendants agree to remove a case?
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69YES YES YES
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66When can P remove a case to federal court?
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66NEVER NEVER NEVER
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P(MO) sues D(CA) in Missouri state court for tort damages of $500,000. Can D remove?
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P(MO) sues Yes - there is diversity.
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P(PA) sues D-1(CA) and D-2 (Missouri) in a Missouri state court for $500K - NOT on a federal question. Later, P dismisses the claim against D-2. Can D-1 remove?
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P(PA) Yes, within 30 days from service of dismissal of D-2. BUT in a diversity case, there is no removal >1 year after the case was filed in state court.
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43 What permission does D need to remove the case?
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43 NONE
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44 If removal was procedurally improper, P…
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44 must move to remand to state court within 30 days of removal.
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Erie doctrine -
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Erie In diversity cases, federal court must apply state substantive law.
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46 State law is substantive, and so governs in a diversity case on these settled issues:
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46 1. Elements of a claim or defense,
2. statute of limitations, 3. rules for tolling statutes of limitations, and 4. conflict/choice of law rules. |
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47 If it's unclear whether state law is substantive, ask…
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47 Is there a federal law on point that directly conflicts with state law? If so, federal law wins.
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A FRCP is valid if it is …
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a FRCP"arguably procedural" - none has ever been ruled invalid
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49 If state law is not clearly substantive, and there is no federal law on point, but federal judge wants to do something other than follow state law, 3 tests:
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49 1. Is state rule outcome determinative? If so, state rule is probably substantive.
2. Balance of interests? (Does either federal/state system have strong interest in having its rule applied?) 3. Avoid forum shopping (If Federal court ignores state law on this issue, will it cause parties to flock to federal court? if so, generally apply state law) |
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51 Venue tells
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51 exactly which federal court
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522 Local actions, about ___________, must be filed _____________.
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522 ownership, possession or injury to land … in the district where the land lies.
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69If it's not a local action, it is called
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69 transitory
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53 In any transitory case, P may lay venue in …
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53 any district where ALL Ds reside (or if all Ds reside in different districts of the same state, P can lay venue in the district in which any of them resides), or a substantial part of the claim arose.
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54 Human beings "reside" for purposes of venue…
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54 in the same state where they are domiciled
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Corporations reside for purposes of venue…
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in all districts where they are subject to personal jurisdiction when the case is filed.
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56 Venue can only be transferred…
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56 to a district where case could have been filed (i.e., proper venue and personal jx over D)
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57 Court has discretion to order transfer of venue based upon…
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57 1. public factors (what law applies, what community should be burdened w/ jury service), and
2. private factors (convenience, e.g., where witnesses and evidence are). |
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CHOICE OF The court to which the case is transferred under a change of venue applies…
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choice of law rules of the original court (even if P sought the transfer)
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59 If venue in original forum is improper, court may transfer…
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59 in the interests of justice or dismiss
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60 What is forum non conveniens?
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60 If there is a far more appropriate court elsewhere, a court may dismiss (usually w/o prejudice) to let P sue D there
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61 Why does a court dismiss for forum non conveniens?
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61 Because the more appropriate court is one to which transfer is impossible because it is in a different judicial system (e.g., a foreign country)
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62 Does it matter for forum non conveniens that P may recover less than in the other court?
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62 Not determinative
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63 FNC dismissal is almost never granted if…
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63 P is resident of the present forum.
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6+4 __________gives notice to D of the case
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6+4 Service of Process
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65 Service of process involves ___________ documents: ______________.
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65 two… a summons (formal court notice of suit and time for response) and a copy of the complaint = process
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66 Process must served _________
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66 within 120 days of filing the case, or else the case is dismissed w/o prejudice, unless P shows good cause for delay in serving
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67 Who can serve process?
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67 Any nonparty at least 18 years old.
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68 How is process served?
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68 1. Personal service,
2. substituted service, 3. service on D's agent, 4. State law, 5. waiver by mail |
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69 Where may personal service be given?
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69 Anywhere in the forum state.
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70 How may substituted service be served?
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70 OK if its D's usual abode, and if P served someone of suitable age and discretion who resides there.
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71 Serving process on D's agent is OK…
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71 as long as receiving service is w/I the scope of the agency
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72 How does waiver by mail work?
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72 Process is mailed to D by first class mail, posted prepaid - Upon notice of the commencement of the action and a request for waiver of service from the plaintiff, a defendant who so agrees is granted an extended time within which to answer – 60 days instead of the 20 days granted when process is formally served. P must serve her using other methods and D may be required to pay the cost of service.
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73 Process delivered to D in another state is allowed …
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73 only if the forum state law allows.
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74 When does D have immunity from service?
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74 1. Tricked
2. If D is served for a federal civil case, while in state to be a witness or party in another civil case. 3. Extradited |
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75 Once process is served, subsequent papers may be served…
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75 by delivering or mailing the document to the party's attorney; if mailed, add 3 days for any required response.
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76 Alternative means of notice, such as newspaper publication, may satisfy due process where individual notice is impracticable and the party seeking to bypass individual notice can demonstrate that...
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76 (1) the suit is in the interest of the absentees, (2) they will be adequately represented by one before the court, and (3) the value of their individual interests is not too great. Where the identities and parties can be reasonably ascertained, however, individual notice is required.
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78 Federal pleading is…
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77 notice pleading; you only need to plead enough detail to allow the other side to be on notice and make a reasonable response
--But the Sup Ct has also said you must state the facts showing a “plausible” claim |
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78 M_____________ requires attorney or pro se party to sign _____________, except ____________.
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78 Rule 11… to sign all pleadings, written motions and papers … discovery documents.
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79 Under Rule 11, the signor certifies that …
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79 paper is not for any improper purpose, legal contentions are warranted by law; factual contentions and denials have evidentiary support (or are likely to after further investigation)
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80 Rule 11 certification is …
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80 continuing - it is effective every time a position is "presented" to the court.
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81 Rule 11 sanctions are intended to _____________, not to ___________; they can be non-___________.
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81 deter, not punish; they can be non-monetary.
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82 Rule 11 procedure:
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82 Rule 11 motion is served on other parties but not immediately filed with the court; other party has 21 day safe harbor to withdraw document of fix problem; if not, motion can be filed. BUT if documents filed by court, no safe harbor.
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83 Can court raise Rule 11 problems sua sponte?
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83 Yes - and if so there is no safe-harbor
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84 Filing ___________ commences an action.
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84 the complaint
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85 Requirements for the complaint:
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85 statement of subject matter jurisdiction; short and plain statement of the claim, showing that P is entitled to relief; demand for judgment.
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86 What is the standard for notice pleading?
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86 Facts supporting a plausible claim
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87Special matters, including _______________ must be pleaded with _____________
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87Special 1. fraud,
2. mistake, and 3. special damages (do not normally flow from event - e.g. permanent erection)… particularity or specificity |
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88D may respond to complaint either ____________; either must be _______ or risk _______.
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88D may by motion or answer… within 20 days after service of process… default
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89Motions of form include…
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89Motion for more definite statement (pleading is so vague, D can't frame a response); motion to strike - e.g., immaterial things
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90 Rule 12(b) defenses include: (7)
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90 (Rule 12 (b) 1) Lack of SMJ;
(2) Lack of PJ; (3) improper venue; (4) insufficiency of process; (5) insufficient service of process; (6) failure to state a claim; (7) failure to join indispensable party |
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91Deferring to state courts, federal courts have traditionally declined to exercise jurisdiction in the following types of cases, even when the parties satisfy the requirements for diversity jurisdiction:
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91Deferring • certain in rem cases.
• probate cases. • domestic relations cases. Additionally, courts are obliged by statute to deny jurisdiction which has been “improperly or collusively made.” |
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92Time to Serve a Responsive Pleading.
i) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time |
Time A defendant must serve an answer:
92A. (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. |
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All Which rule 12(b) defenses may be raised either by motion or answer?
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All of them.
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94 Which rule 12(b) defenses are waivable?
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94 2-5:
(2) Lack of PJ; (3) improper venue; (4) insufficiency of process; (5) insufficient service of process |
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95 Waivable 12(b) defenses _______________
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95 must be included in the first piece of paper (answer or response), or else they are waived
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96Which rule 12(b) defenses can be raised any time at trial? (2)
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96Which (6) failure to state a claim;
(7) failure to join an indispensable party |
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97SMJ Which rule 12(b) defense is never waived - can be raised even on appeal?
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97SMJ (even on appeal)
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98 Answer must be filed
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98 within 20 days after service of process, or within 10 days after court denies a Rule 12 motion - unless D waived service, in which case D has 60 days from P's mailing of waiver form to answer
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99Effect of a Motion. (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.
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99Effect OF A MOTRIONB (A)(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action; or
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100 An answer must:
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100 respond to the allegations of the complaint
1. admit, 2. deny, 3. state that lack sufficient information to admit/deny); 4. raise affirmative defenses |
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101 Stating that D lacks sufficient information to admit or deny acts as a _______; D can't use if ___________
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101 denial… the information is public knowledge or within D's control
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Failure to deny can constitute __________ on any matter except ___________.
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Failure an admission… damages.
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103 If D says "P can't prove X," has P denied X?
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103 No, must use the word "deny"
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104 What does an affirmative defense state?
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104 Even if P is correct, P cannot win - e.g., statute of limitations, statute of frauds, res judicata, self defense.
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105 If D does not plead an affirmative defense, D …
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105 isks waiving the affirmative defense.
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106 A counterclaim…
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106 is a claim against an opposing party (e.g., D v. P)
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107 A counterclaim must be filed…
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107 with D's answer
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108 Two types of counterclaims:
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108 1. Compulsory (arises from same T/O as P's claim; must be filed in pending case or else it's waived FOREVER);
2. Permissive (arises from different T/O; may be asserted in pending case or later) |
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109 What is the only compulsory claim in federal court?
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109 Counterclaim
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110 If P sues D, D answers P and then sues P later related to same T/O, what result?
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110 D's case is dismissed because it's a compulsory counterclaim.
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111 If P sues D, D moves to dismiss; motion granted. Later, D sues P later related to same T/O, what result?
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111 D's case stands, because since D never had to file an answer in the first case, D never had to file the counterclaim
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112 If counterclaim is procedurally OK, assess … if that doesn't work, it will be OK through _________.
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112 SMJ .. Supplemental jurisdiction.
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113 A cross claim is a claim against a…
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113 co-party
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114 Cross claims ___________ arise from ______________.
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114 must … same transaction as the original claim
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115 Which cross claims are compulsory?
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115 None
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116 mIf P amends, D must respond…
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116 within 10 days or the amount of time remaining on his 20 days, whichever would be longer
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117 P has a right to amend once before ________
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117 D serves his answer.
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118 D has a right to amend once _________
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118 within 20 days after serving his answer.
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119 If there is no right to amend…
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119 seek leave of court; it will be granted if justice so requires, based on delay and prejudice.
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120 Variance is where ___________ does not match __________.
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120 evidence at trial… what is pleaded.
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121 If D does not object to a variance, what happens?
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121 1. Evidence at variance with the pleadings is admitted;
2. after trial, P can amend pleadings to conform to the evidence. |
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122 If D does object to a variance, what happens?
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122 Evidence at variance with the pleadings is inadmissible
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123 Amended pleadings to add claims ______________if they concern ______________ as the original pleading.
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123 relate back… same conduct, transactions or occurrence
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124 Relation back means __________
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124 you treat the amended pleading as if it was filed when the original was filed, so it can avoid a statute of limitations problem.
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125 Amended pleadings to change defendants relate back if…
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125 it concerns the same conduct, transaction, or occurrence as the original, the new party knew of the action within 120 days of its filing, and she also knew that but for a mistake, she would have been named originally.
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126 Amendments to change defendants relate back in this factual situation, only:
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126 P sued the wrong D first, but the right D knew about it.
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127 Required disclosures in discovery involve
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127 initial disclosures, experts (“who may be used at trial” and written report containing opinions), Must identify persons and five copies (or description) of documents or electronically stored info “likely to have discoverable info that the disclosing party may use to support its claims or defenses,” computation of damages, and insurance for judgment.
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128 Discovery tools may not be used until after _____________, unless _______________.
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128 Rule 26(f) conference … court order or stipulation allowed. No later than 30 days before trial parties must give detailed info about trial evidence, including documents and identity of witnesses to testify live or by deposition.
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129 What is a key issue about discovery tools?
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129 Which can be used to get info from non-parties.
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130 Which discovery tools can be used to get info from non-parties?
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130 Depositions (but non parties must be subpoenaed); requests to produce (if non-party subpoenaed)
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131 Interrogatories
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131 only go to parties, answered in writing under oath, response required w/I 30 days. Max #: 25 (including subparts)
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132 Physical or mental exams are the only discovery tool that requires…
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132 court order, on a showing that the health of the parties, or someone in the party's control, is in actual controversy and there is "good cause"
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c133 The standard for scope of discovery:
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c133 an discover anything relevant to a claim or defense (i.e., something in the pleadings)
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134 Relevant for discovery means:
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134 Reasonably calculated to lead to the discovery of admissible evidence
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135Which is broader in discovery: relevant or admissible?
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135Which Relevant
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136Privele ged ___________ is not discoverable, but party objecting must ___________
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136Pri vileged matter … object with particularity
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Most heavily tested topic in discovery is
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Most work product, aka trial preparation materials
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Work product is
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Work product material prepared in anticipation of litigation
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proponent Work product is generally protected from discovery unless…
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proponent shows substantial need and info is not otherwise available
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mebntal Work product is absolutely protected from discovery if it is
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mebntal impressions, opinions, conclusions, and legal theories
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141 Does work product have to be generated by a lawyer?
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141 No - a party or any representative of a party may generate work product
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142 Three ways to enforce discovery rules:
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served. |
142 Three ways to enforce discovery rules: 1. Protective order (request is overburdensome, involves trade secrets, etc.),
2. partial violation (light sanction); |
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143 A party seeking discovery sanctions must…
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143 certify to the court that she tried in good faith to get the info without court involvement
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144 Are there sanctions if a party fails to produce electronically stored information because it was lost in the operation of an electronic info system?
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144 not if info was lost in good faith
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145 In partial violations, sanctions are in two step:
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145 1. Order compelling party to comply + costs of bringing motion; if party violates that order,
2. RAMBO sanctions plus costs, could be held in contempt (unless problem is refusal to submit to medical exam) |
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146 In total violations, sanctions are in one step:
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146 Rambo plus costs - no need to get order compelling answers
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RAMBO sanctions give judge choices of:
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RAMBO 1. establishing facts as true,
2. striking pleadings of the disobedient party (as to issues re the discovery), 3. disallow evidence from the disobedient party (as to discovery issues), 4. dismiss P's case (if bad faith), 5. enter default judgment against d (if bad faith) |
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148 Who may be joined as co-plaintiffs?
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148 Parties whose claims
(1) arise from same T/O; and (2) involve at least one common q. at law |
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149 Who may be joined as co-defendants?
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149 Parties, when claims against them (1) arise from the same T/O and (2) involve at least one common question
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150 What to do after deciding whether a party may be joined as a co-party?
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150 Assess SMJ
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151 When are absentees required to join the case?2. A's interest may be harmed if A isn't joined (practical harm) or 3. A claims an interest that subjects a party (usually D) to multiple obligations; *Practical Harm is most tested on Bar Exam*
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151 When Absentee meets any of these tests:
1. Without A, court cannot accord complete relief (fear of multiple suits); |
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152 Are joint tortfeasors "necessary parties?"
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152NO!
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Necessary and indispensable parties involves assessing:
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Who's required, Can A be joined? If A cannot be joined, what happens…?
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Whether a necessary and indispensable party can be joined depends on …
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Whether joinder is feasible - PJ, diversity?
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If A cannot be joined, the court may
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proceed without A or dismiss the case. Courts consider alternative forum (look for state court), actual likelihood of prejudice, whether court can shape relief to avoid that prejudice
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156What happens if court decides to dismiss rather than proceed without A?
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156A is "indispensable."
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Joinder rules that start with _____ are claims between present parties
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C - e.g., counterclaim/cross claim
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158Joinder claims that start with ____ involve bringing someone new to the case
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158I - Impleader, Intervention
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Impleader is
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used by defending party to bring in 3d party who may owe indemnity or contribution to D on underlying claim
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160D may implead by right _______; after that ____________.
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160within 10 days after serving answer… need court permission
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161 How to implead:
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161 file 3d party complaint naming 3d party as TPD; serve process on TPD (so must have personal jx)
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162Can a plaintiff assert a claim against a TPD?
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162Yes, if that claim arises from the same transaction or occurrence as the underlying case, and there is SMJ, or through supplemental jx
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163After TPD is joined, can TPD assert a claim against P?
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163Yes, if that claim arises from the same transaction or occurrence as the underlying case, or through supplemental jx
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6669 Initial requirements for class action:3. typicality (representative's claims/defenses are typical of those of the class), and 4. representation is adequate (the class rep will fairly and adequately represent class)
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6669 1. Numerosity (too many class members for practicable joinder),
2. commonality (some questions of law or fact in common to the class), |
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165 Prejudice class action:
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165 Class treatment is necessary to avoid harm either to class members or the party opposing the class
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466 Damages class action
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166 Common questions predominate over individual questions, and the class action is the superior method to handle the dispute - MOST LIKELY TO BE TESTED - e.g., mass tort
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167 Court must determine _____ whether to ______ the case as a class action
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167 at an early practicable time… certify
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168 What do you have to do if you want to make sure a witness will be there for deposition?
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168 For parties, just give notice. For nonparties, must subpoena.
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169 What is a subpoena duces tecum?
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169 Requires deponent to bring material to deposition
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170What are the limitations of depositions by each party allowed under the FRCP?
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170 a) No more than 10 deps and no repeat deps.
b) A dep cannot exceed one day of seven hours. |
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171 How can depositions be used at trial?
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171Use at trial:
(1) impeachment; (2) any purpose of deponent is an adverse party; (3) any purpose if deponent is unavailable for trial (unless absence was causes by proponent of evidence) |
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172 In a fed case, what is intervention?
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172 Absentee wants to join a pending suit. Can intervene as pl or def (ct may realign her)
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173 In a fed case, what is it called when an absentee wants to join a pending suit?
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173 Intervention
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Timing: When is intervention permissible?
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Timing :Application to intervene must be “timely” (no day limitation)
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557 What are the 2 kinds of intervention? Describe them.
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557 1) Intervention of right: Absentee’s interest may be harmed if not joined, and her interest is not adequately represented now (like test #2 for ‘necessary parties’)
2) Permissive intervention: Absentee’s claim or defense and the pending case have at least one common question. Ct has discretion to allow it in light of (1) delay and (2) prejudice |
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889What is interpleader?
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889One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency
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177 In a fed interpleader action, what do you call the person holding the property? What do you call the people who might want the property?
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177 Stakeholder: person with the property
Claimants: people who want the property |
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777 What are the two kinds of federal interpleader actions? (Names only)
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777 “Rule” interpleader (FRCP 22)
“Statutory” interpleader |
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179 For "rule interpleader" under federal law, describe the requirements for citizenship, amount in controversy, service, and venue.
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179 i) Citizenship: stakeholder must be diverse from every claimant
ii) Amount in controversy: >$75k iii) Service: normal iv) Venue: normal |
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puhiv For "statutory interpleader" under federal law, describe the requirements for citizenship, amount in controversy, service, and venue.
iii) Service: nationwide service (so no PJ problems over US claimants)iv) Venue: any district where any claimant resides |
puhiv i) Citizenship: one claimant must be diverse from one other claimant (stakeholder’s c-ship is irrel)
ii) Amount in controversy: ≥$500 |
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2424 If there is a pending federal interpleader action, can the court enjoin claimants from suing elsewhere?
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2424 Yes (that's the idea)
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Hypo: Insurance company (incorporated in Del; PPB in NY) has life insurance fund. Claimants are from NY, MN, and NY. Insurance Co. wants to avoid being sued on 3 diff actions What should it do?
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Hypo: Statutory interpleader. (No "rule interpleader" because no complete diversity.)
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183183 What are the 3 common types of class actions?
b. Injunction or declaratory judgment (not damages) (e.g., employment discr)c. Damages: requires (1) common questions predominate over individual questions, and (2) class action is the superior method for handling the dispute (e.g. mass tort) |
183183 a. “Prejudice”: class treatment necessary to avoid harm either to class members or opposing party. (E.g., many claimants to a single fund where individual suits might deplete the fund.)
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a. T In a fed class action for damages, what are the notice requirements for class members? What must the notice say?
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a. The ct must notify class members by individual notice (by mail) to all reasonably identifiable members.
b. Notice says: (1) they can opt out, (2) they will be bound absent opt-out, and (3) they can make a separate appearance through counsel. |
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6161 In a fed class action that is NOT for damages, how can a person opt-out?
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6161 There is NO opt-out allowed for such class actions. Only damages actions have an opt-out possibility.
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6262 Who pays for notice in a class action?
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6262 The class representatives
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5554 If the parties to a class action reach a settlement or agree to dismiss, must they have court approval?
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5554 YES
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aaaa If the parties to a class action reach a settlement or agree to dismiss, must they give notice to class members?
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aaaa 1) In all 3 types, the ct gives notice to class members to get feedback on settlement/dismissal.
2) In damages actions, the ct must give a 2nd chance to opt ou |
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1899 In a federal class action, how can the action qualify for diversity jurisdiction?
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1899 1) As long as reps are diverse from the def and amt >$75k, it’s okay
--BUT: the Class Action Fairness Act of 2005 allows for SMJ of class actions so long as any class members (not just reps!) is diverse from any def and amt in controversy exceeds $5M. |
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190What is the Class Action Fairness Act of 2005?
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190Federal law allowing for diversity SMJ of class actions so long as any class members (not just reps!) is diverse from any def and amt in controversy exceeds $5M. The idea is to make it easier for interstate actions to get into fed ct.
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191 In a fed case, when can a pl dismiss a case by right?
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191 Pl may file written notice of dismissal before def’s answer or motion for SJ.
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192 If a pl in a fed case dismisses a suit by right, will the dismissal be without prejudice?
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192 Yes, unless pl dismissed the case a 2nd time.
--This is true even if 1st filing was in state court |
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193In a fed suit, when can a plaintiff get a default judgment from the CLERK?
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193 Clerk can enter judgment if ALL of following are true:
i) Def made no response at all ii) Claim itself is for a certain amount iii) Claimant fives an affidavit (sworn statement) of money owed iv) Def is not a minor or incompetent --Otherwise, pl must go to the judge for a judgment. |
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194 In a federal suit, can a plaintiff get more in a judgment than that which was in the complaint? What about on a default judgment?
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194 At trial, yes it can be more. But on default judgment, the award cannot exceed what the claimant demanded in complaint, nor can it be diff kind of relief.
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By In a federal suit, how can a defendant have a default/default judgment set aside?
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By showing good cause and a viable defense.
--Good cause usually means excusable neglect |
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Timing In a federal suit, what is the difference between a dismissal for "failure to state a claim" and a "motion for judgment on the pleadings"?
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Timing. It's called failure to state a claim if the defendant has not answered. If this motion is made after a def answers, it’s called motion for judgment on the pleadings.
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YES In a federal suit, if a pl’s complaint shows a complete defense on its face, can a def win on a motion to dismiss for failure to state a claim?
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YES. But the complaint--not the answer--must show a complete defense.
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Moving What must a party show to win on a motion for summary judgment?
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Moving party must show (1) no general dispute on a material issue of fact and (2) entitled to judgment as a matter of law
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199999 In a federal suit, what evidence may the court consider for a motion for summary judgment?
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199999 1) Sworn statements (affidavits), depositions, admissions, etc., if they involve first-hand knowledge
2) NOT pleadings (unless “verified pleadings”) --Exception: Court can consider pl's allegations that def did not deny (i.e., admissions) |
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200 Timing: What is a Rule 26(f) conference, and when must it be held?
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200 Unless court order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties must discuss claims, defenses, and settlement
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201 Timing: Within how many days of a Rule 26(f) conference must parties present a discovery plan to the court?
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201 14 Days
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202 In a federal case, the final pretrial conference determines issues to be trial and evidence to be proffered. What standard is required to amend this order?
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202 This final order supersedes the pleadings and may only be amended “to prevent manifest injustice” (high standard)
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203 In what types of cases is a federal plaintiff entitled to a jury trial?
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203 On legal claims (not equitable claims)
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204 If a federal suit involves legal and equitable claims, which claims are tried first?
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204 Legal (with a jury)
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205Timing: When must a federal plaintiff make a jury demand?
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205Demand must be within 10 days after service of last pleading raising jury triable issue
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cdl How many preemptory strikes do parties get in federal court?
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cdl 3 - Must be used in a race and gender neutral manner.
Unlimited "for cause" |
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207What is the motion called in a federal case when a party thinks it has won after the opposing party had finished presenting its side at trial?
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207Motion for Judgment as a Matter of Law (JMOL) "Directed Verdict"
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208When can a federal party bring a motion for judgment as a matter of law?
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208This can be brought after the other side has been heard
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Reasonable What is the standard for a motion for judgment as a matter of law?
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Reasonable people could not disagree on the result
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210What is a Renewed Motion for Judgment as a Matter of Law?
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210Federal only: This is the same as a JMOL but occurs AFTER the jury returns with a verdict. Motion is made by the losing party. (jnov)
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211Timing: When can a party in a federal suit bring a renewed motion for judgment as a matter of law?
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211-AFTER the jury returns with a verdict. Motion is made by losing party.
--Party has 10 days from entry of judgment to file the motion. --Prerequisite: movant must have moved for JMOL at trial |
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213Timing: In a federal suit, when can a party make a MOTION FOR A NEW TRIAL?
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213Within 10 days of judgment
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aaaw In a federal case, what are the 5 grounds for a motion for a new trial?
3) Prejudicial misconduct of party or attorney or third party or juror (e.g., juror conducted indep investigation of accident)4) Judgment is against the weight of the evidence (serious error of judgment by jury)5) Excessive or inadequate damages |
aaaw 1) Prejudicial (not harmless) error at trial makes judgment unfair (e.g., wrong jury instruction, evidentiary ruling, etc)
2) New evidence that could not have been obtained with due diligence for the original trial |
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214In a federal case, what must a party demonstrate to get a new trial on the basis of new evidence?
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214New evidence that could not have been obtained with due diligence for the original trial
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215In a federal case, what are the 4 grounds for a motion to set aside the judgment?
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215a. Clerical error (timing = anytime)
b. Mistake, excusable neglect (timing= reas time not exceeding 1 yr) c. New evidence that could not have been discovered with due diligence for a new trial motion (timing= reas time not exceeding 1 yr) d. Judgment is void (timing = reas time, no cap) |
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216What is the test for whether a federal case is at the proper point in its life that it can be appealed?
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216Final Judgment Rule: Does the trial judge have anything left to do on the merits of the case? If so, it's NOT final.
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217In a federal case, is a trial court's decision to remand to state court reviewable by a federal appeals court?
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217No (by statute)
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218If a federal case has a motion granted or denied on motion for JMOL or RJMOL, is the case "final" and thus reviewable?
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218YES
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219Timing: In a federal case, how long does a party have to appeal a case? What must be filed, and where?
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219File notice of appeal in trial court within 30 days of entry of final judgment
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220In the federal system, what do the following 4 kinds of trial court orders have in common:
a. Orders granting, modifying, refusing (etc) injunctions b. Appointing or refusing to appoint receivers c. Finding of patent infringement where only an accounting is left to be done d. Orders affecting possession of property (e.g. attachments) |
220From any of these orders, parties have an interlocutory appeal as a matter of right
c. Finding of patent infringement where only an accounting is left to be doned. Orders affecting possession of property (e.g. attachments) |
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987In a federal suit, is a decision on class certification appealable as a matter of right?
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987No. It's discretionary.
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222In a federal suit, if a decision on class certification is on appeal, must the trial court stay the case?
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222No. Appeal does not stay proceedings unless the trial judge or app ct so orders.
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66998Timing: How long does a party have to file an interlocutory appeal on a decision to certify a class in a federal class action?
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66998 10 DAYS
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224What does the Interlocutory Appeals Act do?
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224Allows appeal of nonfinal order if;
(1) trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and (2) the app ct agrees to hear it. |
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225What is the "collateral order" exception in the context of federal interlocutory appeals?
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225Appellate ct has discretion to hear ruling on an issue if all 3 are true:
(1) it is distinct from the merits of the case; (2) it involves an important legal question; and (3) it is essentially unreviewable if parties must await a final judgment --E.g., claim of immunity from suit, such as a state’s claim of 11th Am immunity from suit for damages |
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226When more than one claim is presented in a federal case (e.g. claim and counterclaim), or where there are multiple parties, can the trial court expressly direct entry of a final judgment as to one or more of them?
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226Yes, if it makes an express finding that there is no just reason for delay
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227If the court certifies the class, it must ____________
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227define the class and the class claims, issues or defenses, and appoint class counsel
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228Class counsel must ____________________-
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228fairly and adequately represent the interest of the class
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229Class action and SMJ:
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229Fed Q works; Diversity, look only to rep and not to other class members to determine diversity and amount in controversy
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230230Voluntary dismissal means…
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230230
1. may be allowed on court order (and P may have to pay for D's costs); sometimes P may simply file a written notice of dismissal |
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231In ruling on a Rule 12(b)(6) motion, court considers…
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231only the face of the complaint; not evidence.
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232Court will likely grant a 12(b)(6) without prejudice to …
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233give P another chance to state complaint
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233P's complaint sets forth elements of a claim, but also on its face shows that there is a complete defense that bars the claim, will a 12(b)(6) motion be granted?
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233Yes - standard is, if everything P says in complaint is true, motion granted
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234What's the term for a motion for failure to state the claim if D has already filed his answer
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234Motion for judgment on the pleadings
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235Motion for summary judgment must show
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235No genuine dispute as to material issue of FACT, and that she is entitled to judgment as a matter of law
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236Can a party move for partial summary judgment?
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236YES
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237What can court consider in motion for summary judgment?
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237Evidence - which it considers in the light most favorable to the moving party
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38Why is there ever a trial?
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238To resolve disputes of fact
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239Pleadings are _______ evidence, unless _______, but they may be relevant to a motion for summary judgment if they __________
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239NOT… they are verified… show an admission
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240Evidence in affidavit for summary judgment must be …
|
240firsthand knowledge
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241If firsthand evidence creates a dispute on a material issue of fact…
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241summary judgment cannot be granted
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242Pretrial conference order ______________ and may be amended _____________ (or by ___________)
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242takes the place of the pleadings… to prevent manifest injustice… or by conforming to evidence if evidence beyond the pretrial conference order is proffered and not objected to
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|
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243Seventh amendment (only in federal court) preserves the jury in
|
243civil actions at law
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244When must a renewed motion for judgment as a matter of law be filed?
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244w/I 10 days after entry of judgment
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245As a general rule, can appeal only ________, meaning
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245from final judgments, meaning an ultimate decision by the trial court of the merits of the entire case
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246Where is a notice of appeal filed, and when?
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246In the trial court, w/I 30 days after entry of final judgment
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247Is grant of a motion for new trial a final judgment?
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247No, because the court must hold a new trial
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248Is denial of a motion for new trial a final judgment?
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248YES
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249Is grant of motion to remand to state court a final judgment?
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249NO
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250Is grant/denial of renewed motion for judgment as a matter of law a final judgment?
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250YES
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251Constitutional Analysis for in personam jurisdiction…
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251International Shoe: Does D have minimum contacts with the forum so that exercise of JX does not offend traditional notions of fair play and substantial justice.
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|
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252My Parents Frequently Forgot to Read Children's Stories
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252(MINIMUM contacts, PURPOSEFUL availment, FORESEEABILITY,
FAIR play and substantial justice, RELATEDNESS of contact and claim - here, discuss both specific and general jx), CONVENIENCE, STATE'S interest |
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253What matters for PJ re an Internet website?
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253An interactive website may be purposeful availment, but a passive website, providing only information, in another state, is probably not a relevant contact with mISSOURI
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254IN federal court venue is laid in ________; in state court, it is laid in _____________.
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254an appropriate federal district … an appropriate county
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