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145 Cards in this Set
- Front
- Back
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What do you need to establish federal jurisdiction?
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-Subject matter jurisdiction(diversity/federal question)
-Personal jurisdiction over each D (in personam or quasi in rem) -D served adequately -Venue -D received adequate notice and opportunity to be heard |
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What do you need for federal subject matter jurisdiction?
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Diversity or federal question
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What are the purposes of the complaint?
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-Notice to defendant
-Notice to the court -Facilitate decision on the merits |
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What happens if the defendant receives a complaint and they really have no idea what’s going on?
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-FRCP Rule 12(e)
-He can file a motion for a more definite statement |
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Rule 12(e)
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Motion for a more definite statement
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Rule 8(a)(1)
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Pleading for a claim for relief (claim, counterclaim, cross-claim, etc.) shall contain a short statement on grounds for court's jurisdiction and short statement showing pleader is entitled to relief and demand for judgment for the relief the pleader seeks
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Rule 10
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Set up of pleadings
(a) caption - names of parties (b) paragraphs - separate statements |
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Are there any drawbacks to giving too much detail in the complaint?
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-If some of your details are wrong or harmful, you might get your case dismissed
-You may give away some of your strategies or weaknesses to your opponent |
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When is it acceptable to put contradictory allegations in a complaint?
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-If the Plaintiff is genuinely unsure of what happened
-It has to be reasonable |
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Rule 11
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-Court may sanction lawyers or parties responsible for violation – 11(c)
-allegations are warranted by existing law or legitimate argument for extension of the law - 11(b)(2) -allegations must have evidentiary support - 11(b)(3) -Court has discretion – it may impose sanctions -Alleged violator has 21 days to withdraw or correct the challenged pleading -Court may impose sanctions on its own initiative with show cause opportunity - 11(c)(1)(b) |
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What happens if alleged violator of Rule 11 withdraws or corrects the challenged pleading?
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The motion goes no where and the court never even sees it
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Rule 11(b)(2)
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· sanctions are not appropriate if party has “a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.”
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Rule 12(b)
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Motion to dismiss
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When must a Rule 12(b)(6) motion be filed?
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Must be filed before the answer
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What must a Rule 12(b)(6) motion state?
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State that complaint fails to allege a claim upon which relief can be granted
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How are facts in complaint dealt with in a 12(b)(6) motion?
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All material facts well pleaded in complaint must be taken as true
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How is a 12(b)(6) case usually dismissed?
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Usually a motion to dismiss is given with prejudice, which means that it’s garbage and you can’t bring it again. Every once in a while a judge will dismiss a case without prejudice, which means you can retool it and bring it again
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When must a 12(b)(6) motion be denied?
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If there is a contested issue of material fact.
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Rule 12(h)(1)
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Provides that lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process will be waived forever if omitted from a pre-answer motion, or if no motion is made, from the answer
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Rule 12(h)(2)
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Provides that failure to state a claim upon which relief can be granted, failure to join an indispensable party, and failure to state a legal defense to a claim can be made in any pleading or by motion for judgment on the pleadings, or at trial on the merits
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Rule 12(h)(3)
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Provides that lack of jurisdiction of the subject matter may be made at any time
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Which rule deals with default?
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Rule 55
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Rule 55(a)
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Entry of default
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Rule 55(b)
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Judgment by default -
Judgment usually entered by the court after a hearing. In rare circumstances, if damages easily ascertainable, clerk may enter judgment |
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Rule 55(c) factors
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-Whether plaintiff will be prejudiced
-Whether defendant has a meritorious defense -Whether defendant’s culpable conduct led to the default |
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Rule 60(b)
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Relief from judgment or order - mistakes, inadvertence, excusable neglect, newly discovered evidence, fraud
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How long after judgment can Rule 60(b) be used?
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Not more than 1 year
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Which rule deals with answer?
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Rule 8(b)
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What ways may you answer a complaint?
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-Admit allegation
-Deny allegation -Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation (usually deemed a denial) -Can admit part of an allegation and deny another part -General denial of everything (rarely done) |
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When can Rule 11 sanctions apply to an answer?
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If you deny an allegation that you should have admitted - Rule 11(b)(4)
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Aver
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to state
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What rule deals with affirmative defenses?
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Rule 8(c)
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What is a compulsory counterclaim?
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The counterclaim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim
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When must defendant raise counterclaim?
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The defendant must assert the claim in response to the plaintiff’s lawsuit or the claim is waived
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What is a permissive counterclaim?
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-Defendant has permission to assert these in conjunction with the plaintiff’s lawsuit
-Counterclaim does not arise out of the same transaction or occurrence but is between the same parties |
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Federal Jurisdiction over compulsory vs. permissive counterclaims
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-If the counterclaim is compulsory, the federal court retains jurisdiction over it
-If the counterclaim is permissive, the federal court has no jurisdiction. The counterclaim will be dismissed to be filed in federal court |
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Which rule deals with voluntary dismissal?
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Rule41(a)(1)
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When can plaintiff voluntarily dismiss case without court permission?
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-Plaintiff can dismiss case without court permission before defendant serves an answer or motion for summary judgment
-Without court permission, parties can submit stipulation of dismissal signed by all |
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Is a first time voluntary dismissal with or without prejudice?
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Without prejudice. Second time is with prejudice.
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Rule 65(b)
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Temporary restraining order
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What rule deals with amendments?
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Rule 15
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When and how many times can a complaint be amended?
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Once before the answer is served
-Otherwise need leave of the court -Leave should be liberally granted |
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When and how many times can an answer be amended?
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Once within 20 days of service
-Otherwise need leave of the court -Leave should be liberally granted |
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When should leave to amend be denied by the court?
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-Amendment will result in undue prejudice to other side
-Amendment unduly delayed |
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Rule 15(c)(3)
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Relation back
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What are the guidelines for relation back?
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-New party must receive notice of the action within 120 days after the suit is filed
-New party will not be prejudiced by the delay in preparing its case -Defendant knew or should have known that but for a mistake, the action would have been brought against it |
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Rule 15(c)(2)
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Adding new claim after statute of limitations expires
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When can you add a claim after the statute of limitations expires?
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The claim arose out of the conduct, transaction, or occurrence set forth in the original complaint
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Rule 15(a)
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Adding a new claim if statute of limitations has not expired
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Rule 18(a)
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-Addresses joinder of CLAIMS
-One party can join in the same lawsuit as many claims as it has against another party even if they are unrelated |
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Rule 42(b)
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-Court may sever unrelated claims and conduct separate trials whenever it has good reason to do so
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Rule 20
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Permissive joinder of parties
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Plaintiffs may join together in a lawsuit if:
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-Right to relief arises out of same transactions or occurrences; AND
-There is a question of law or fact common to all plaintiffs |
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Plaintiff may sue multiple defendants if:
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-Claims arise out of same transactions or occurrences; AND
-a question of law or fact common to all defendants will arise in the action -Rule 20(b) – separate trials |
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Rule 19
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Compulsory joinder of parties
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Compulsory joinder
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-Sometimes joinder of parties is necessary if feasible
-At other times joinder is indispensable |
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Why might a party resist joinder?
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-Doesn’t want to share damages with other plaintiffs
-Can’t locate other plaintiffs or defendants easily -Running against statute of limitations |
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Diversity jurisdiction in federal court
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-Plaintiffs and defendants must be from different states
-Amount in controversy must exceed $75,000 |
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Under Rule 19(a), how do you determine who are necessary parties in compulsory joinder?
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-Without joinder, can complete relief be accorded to those already in the lawsuit?
-In the absence of the non-party, will a judgment impair the rights of the non-party? -Will those who are already parties be at risk of incurring inconsistent obligations in separate lawsuits? |
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When might a court be incapable of joining a necessary party?
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-A federal court might lose jurisdiction because joinder will destroy diversity
-If they are necessary, but not indispensable – you leave it alone and don’t join them |
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Under Rule 19(b), how do you determine who are indispensible parties in compulsory joinder?
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-To what extent will a judgment rendered in the absence of a person be prejudicial to the non-party or to others in the case?
-Can the court, by crafting protective provisions in the judgment or shaping the relief in a particular way, diminish or eliminate the prejudice? -Will the judgment rendered in the person’s absence be adequate? -If the court dismisses the action because the necessary party cannot feasibly be joined, will the plaintiff be able to obtain relief subsequently? |
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What rule deals with impleader?
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Rule 14
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Counterclaims
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-Generally asserted by defendants against plaintiffs
-Some are compulsory – same evidence rule -Some are permissive |
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Cross-Claims
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-Asserted by one party against a co-party. Plaintiff against plaintiff or defendant against defendant
-Rule 13(g) – cross-claim must arise out of same transaction or occurrence as original claim or counterclaim or must relate to property at issue in original claim |
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Rule 13(h)
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If a party asserts a counterclaim or cross-claim, it can add parties as long as rules 19 and 20 are not violated
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Rule 24
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Intervention
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Intervention as of right
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-By statutory mandate, e.g. Title VII (civil rights)
-Person claims an interest relating to property or transaction that is the subject of the lawsuit --Disposition in person’s absence will impair her ability to protect the right --Interest is not adequately represented by existing parties -If the court finds that all of these terms are met, they have to let the person intervene |
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Permissive Intervention
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-Some statutes give you permission to intervene if the court says okay
-Person’s claim and main action have a question of law or fact in common --If the claim is going to cause undue delay or prejudice to the parties already involved, the court is not going to allow it |
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Rule 23
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Class actions
-First, all four prerequisites of 23(a) are met -Then, must fulfill one of the requirements of 23(b) |
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4 Prerequisites of class actions
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-Numerosity – enough people that joinder is impractical
-Common question of law or fact -Typicality (P's claims typical of all claims) -Adequate representation |
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When is class certification usually inappropriate?
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Mass accidents and torts
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Rule 23(e)
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Settlement of class actions
-Court approval required -Notice to all class members required, as directed by the court |
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Rule 26(a)(1)(A-D)
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Initial disclosures and what must be disclosed in them
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Rule 34
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Request for production of documents
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How many interrogatories is each party limited to under the current federal rules?
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25 including subparts
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Pursuant to Rule 35, when is it appropriate to conduct a physical or mental examination of someone?
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-When a person’s mental or physical condition is in controversy
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Which 2 discovery mechanisms can be used to obtain information from a third party not a party to the suit?
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depositions and document requests
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What kind of motion can you file if your opposing party refuses to cooperate in responding to your discovery requests?
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-talk to opposing party and threaten to file a motion to compel
-file motion to compel |
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Do you have to do anything if you obtain additional relevant information after you have responded to a discovery request?
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You have to supplement your disclosures – Rule 26(e)
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Work Product
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Material prepared in anticipation of litigation or for trial by a party or its representatives
-Rule 26(b)(3)) |
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Work product rule rationale:
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-Parties must prepare thoroughly for cases
-Parties should not skew their own notes for fear of disclosure -Opposing party has other means of discovery: depositions, interrogatories, document production |
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Work Product Exception
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Work product is disclosable if:
-Party seeking it has “substantial need” AND -Party seeking it cannot obtain the information by other means without undue hardship -Mental impressions, conclusions, opinions, and legal theories of attorney or party’s representatives are never disclosed |
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Attorney-client privilege is absolute unless:
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-Client waives it
-Statements made in public place where can be overheard -Client puts the communication at issue in case --i.e. attorney malpractice |
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Rationale for Attorney-Client Privilege
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-Attorney should know everything about client
-Client should trust attorney -Client should have every incentive to be honest with lawyer |
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Non-testifying experts: Rule 26(b)(4)(B)
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Opinions disclosable only in exceptional circumstances
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Rule 37
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Discovery sanctions
-Reimburse opponent for expenses relating to failure to cooperate -Court can strike portions of pleadings, exclude evidence, decide issues against disobedient party -Dismiss complaint or declare default judgment |
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Rule 56
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Summary judgment
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Summary judgment granted if:
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-the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits... show that there is no genuine issue as to any material fact...”
-can have a motion for partial summary judgment on just one of the claims |
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Distinction between motion to dismiss and summary judgment
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-Rule 12(b)(6) – look only at pleadings
-Rule 56 – matters outside the pleadings are presented to the court, e.g. affidavits or deposition testimony |
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Rule 56(f)
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Court can order continuance of motion for summary judgment to allow further discovery
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Burdens of Persuasion in Summary Judgment
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-Burden of persuasion – plaintiff bears burden of persuading the trier of fact that her allegations are true
-Preponderance of evidence standard -Movant must demonstrate that there is no genuine issue of material fact |
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Burden of Production – Summary Judgment motions
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Party responding to a motion for summary judgment must only produce enough evidence to convince the judge that the case should go forward, that there exists a genuine issue of material fact
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Final Pretrial conference goals:
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-Simplify issues
-Clarify issues -Eliminate trial inefficiencies -Settlement --problem if judge orders mediation ---it’s expensive ---it’s not binding -Joint pretrial statement must be prepared and agreed upon by both parties |
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Rule 16
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Pretrial conference
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Reasons not to settle:
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-Set important precedent
-Defendant doesn’t want to settle as a matter of principle --Doesn’t want implied admission of fault -Discourage other plaintiffs from suing -Attorney will lose opportunity for publicity -Attorney loses opportunity to work on meaningful case |
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Judgment as a matter of law
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-used to be called motion for directed verdict
-A party can make this motion after the opposing party has been fully heard on the issue -Make motion before submission of the case to the jury |
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Rule 50(a)
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Judgment as a matter of law
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Standard under Rule 50(a):
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-Judge must find that “there is no legally sufficient evidentiary basis for a reasonable jury to find for the [opposing] party.”
-Evidence too weak to support a rational verdict for opposing party. |
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Rule 50(b)
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Renewing motion for judgment after trial
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Renewing motion for judgment after trial
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-Up to 10 days after the entry of judgment
-Used to be called JNOV – judgment notwithstanding the verdict -Now condensed into judgment as a matter of law -Only if motion made during the trial (have to have made a motion for a judgment as a matter of law) -Same standard as judgment as a matter of law |
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Options for losing party:
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-Motion for judgment as a matter of law (JNOV)
-Appeal -Motion for a new trial |
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Rule 59: New trial appropriate if:
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-Serious error occurred during trial
-Verdict was against the clear weight of the evidence -Motion made no later than 10 days after entry of judgment -Motion made by any party or by the judge sua sponte |
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Rule 50(b)
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Motions for a judgment as a matter of law often filed together with motion for new trial
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Rule 60(b) – relief from judgment
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-Mistake, inadvertence, excusable neglect
-Newly discovered evidence -Fraud -Several other reasons |
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Mechanisms to take case away from the jury:
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-Motion to dismiss
-Summary judgment -Motion for judgment as a matter of law before case goes to jury -Motion for judgment as a matter of law after entry of judgment -Motions for new trial |
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Remittitur
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Judge will grant motion for new trial unless plaintiff accepts specified reduction in verdict
-Judge can’t just cut it down – has to give plaintiff an option -Doctrine based in common law -Judge must find the award is “so excessive and exorbitant as to show passion and prejudice on the part of the jury.” |
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Additur
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Judge will grant new trial unless defendant accepts specified increase in verdict
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Is additur permissible in federal courts?
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According to Supreme Court:
-Additur is not permissible in federal courts -Violates Seventh Amendment -State courts are not bound by the 7th Amendment and use additur -Some federal courts employ additur and have gotten away with it |
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Rule 49
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-Special verdict – jury gets particular questions and must make written finding on each issue
-General verdict – normal liable/not liable verdict -General verdict and interrogatories – jury issues a verdict and then answers specific questions about its finding of fact |
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General verdict and interrogatories - inconsistencies
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-The two can be inconsistent
-Judge can enter judgment that is consistent with answers to interrogatories but not general verdict (only if answers are consistent with each other) -Judge can point out inconsistencies and send jury for further deliberations -Judge can order a new trial |
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In personam jurisdiction
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Jurisdiction over the person, i.e. the defendant
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Jurisdiction over nonresidents
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-According to Neff court, nonresident defendant must be personally served with process within the state or must voluntarily appear before the court (consent to the jurisdiction)
-State court could also seize defendant’s property located in the state at the outset of the action. If property was seized, service by publication was acceptable – no personal service necessary |
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What 2 requirements do you need for jurisdiction?
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-Does subjecting the nonresident defendant to jurisdiction violate her 14th Amendment right to Due Process? (minimum contacts)
-Does subjecting the nonresident defendant to jurisdiction violate the state’s own jurisdictional statute? |
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To what extent can a federal district court exercise personal jurisdiction?
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A federal district court may exercise jurisdiction only to the extent a state court of the state in which it sits could exercise jurisdiction
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Corporations are residents of:
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State where they are incorporated and state where their principal place of business is
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Three types of jurisdiction:
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-In personam
-In rem -Quasi in rem |
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What’s the difference between personal and in personam jurisdiction?
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-in personam, in rem, and quasi in rem are the three types of personal jurisdiction
-personal jurisdiction just means that you get jurisdiction over the defendant and then you have to decide how |
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Due Process
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-Requires that the court have personal jurisdiction over the defendant
-Requires that the defendant have notice of the lawsuit |
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Rule 4
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-Service can be affected by any person 18 or older who is not a party
-Service by delivery to individual personally or by leaving documents at individual’s home with a person of suitable age and discretion who resides there -Service to defendant’s agent -Service pursuant to state law --If a state has a law dealing with service and you’re in that state, you can follow that law, even if you’re in federal court |
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Rule 4(d)
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-Service by mail
-Defendant who waives service in person gets 60 days to answer rather than 20 -Defendant who refuses waiver is assessed the costs of service |
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28 USC Section 1391
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Venue
-Determines in what judicial district the suit can be brought -a) diversity cases; (b) federal cases; (c) defines where corporation is resident |
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In both diversity and federal question cases venue is proper in judicial district:
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1) where any defendant resides if all reside in same state
2) where substantial part of events giving rise to action occurred or property is located 3) Fallback option: district where defendant is subject to personal jurisdiction (minimum contacts) can be “found.” |
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In cases involving a corporation, venue is proper when:
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-Corporations “reside” in any judicial district in which there is personal jurisdiction at the time the action is commenced
-See analysis for states with multiple districts – deemed to reside in the district where the corporation has the most significant contacts (you pretend each district is a state and do the minimum contacts analysis for each district) |
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28 USC Section 1404
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-Venue is appropriate but inconvenient
-Court may transfer the case to a more convenient district or division |
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Forum non conveniens
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-Personal jurisdiction exists and venue is proper but forum is extremely inconvenient for defendant AND
-If appropriate forum is another country, court can dismiss --Basically, transfer under 1406 can’t be done -State court can dismiss a case more conveniently litigated in another state |
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12(h)(1)
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Defendant can waive objection to personal jurisdiction and venue
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12(h)(3)
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An objection to subject matter jurisdiction cannot be waived
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Is a defense based on federal law sufficient to establish federal question jurisdiction?
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No, claim must be based on federal law
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Right of Removal
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Defendant has a right to remove case from state court to federal court if it could have been brought in federal court originally
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Res judicata
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Claim preclusion - prohibits relitigation of a claim that has already been litigated by the parties and gone to judgment
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Rule 41(b)
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Dismissal of case constitutes a judgment on the merits unless:
-Judge says it’s not a judgment on the merits -Dismissed for lack of jurisdiction -Dismissed for improper venue -Dismissed for failure to join party under Rule 19 |
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A sufficient compliant must contain three elements?
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1. A short and plain statement of the grounds for the court’s jurisdiction R8(a)(1)
2. A short and plain statement of the claim showing that the pleader is entitled to relief R8(a)(2) 3. and demand for relief sought R8(a)(3) |
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12(b) (1)
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doctrines of subject matter jurisdiction
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12(b) (2)
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personal jurisdiction
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12(b) (3)
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Venue
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12(b) (4)
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insufficient process
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12(b) (5)
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insufficient service of process
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12(b) (6)
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failure to state a claim upon which relief can be granted. (can be made as a motion or in the answer)
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12(b) (7)
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failure to join a party under rule 19
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Plausibility test
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a complaint must state facts showing a plausible, more than conceivable, claim. (Bell Atlantic)
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Prima facie case
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refers to a bundle of elements that a plaintiff must prove in order to prevail on a particular claim.
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R 8(b) refers to?
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The Answer to the complaint
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R 8(b) (1): imposes two requirements?
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1. first, an answer must admit or deny the allegations in the complaint R 8(b) (1) (B)
2. second, it must state in short plain terms its defenses R 8(b) (1) (A) |
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With Prejudice
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the plaintiff cannot correct the defect in the complaint
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Without Prejudice
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allows a plaintiff to file and amend a complaint correcting the deficiency
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